Abstract
Both territoriality and political status serve as parameters for determining the extent of a state's obligation to uphold human rights. Scholars have shown that different actors may manipulate the scope of these parameters to serve their particular purposes. Based on interviews with lawyers from Israeli human rights organizations, this article shows how they also manipulate the relationships between these parameters. When representing different clients, lawyers from Israeli human rights organizations accentuate one parameter over the other, demand congruity between them, or reject both. The findings highlight how the movable intersections between territoriality and political status facilitate a multitude of discursive strategies from which lawyers can pick and choose, to address political predicaments they face in their praxis. Furthermore, by judiciously applying these strategies, lawyers are able to mobilize the indeterminate relationship between political status and territoriality to destabilize what they perceive to be the unjust boundaries promoted by the state.
Introduction
Territoriality and political status are commonly used as parameters for determining the extent of a state's obligation to uphold human rights. When representing cases in domestic courts, human rights lawyers often find that these parameters present something of a dilemma. On the one hand, arguing that their client's case falls within the parameters that define a state's obligations to uphold rights—that is, because their political status grants them certain rights or because they reside in a territory that falls under the state's jurisdiction—will likely aid their case. On the other hand, relying on a state's allocation of political status or its definition of its territorial obligations may silence political protestations concerning past and present injustices that established and supported these parameters in the first place (Patler 2018; Hajjar 2017; Kemp and Kfir 2016; Bisharat 2012; Jabareen 2010; Yashar 2005; van der Vet 2014).
In this article, I examine the testimony of lawyers who regularly face this dilemma: those working for Israeli human rights organizations. They represent a variety of clients with different political statuses: citizens, residents, asylum seekers, and ‘protected persons’ living in occupied territories. Their clients may also reside in territories with different legal statuses, including occupied territory, state territory, or extraterritorial areas that are beyond the state's jurisdiction. Moreover, these lawyers have to deal with the Israeli State's exploitation of the flexibility created by the inconsistency of these parameters and the indeterminate relations between them.
I show how they are able to soften the abovementioned dilemma not only by bending each of these parameters to gain various professional, political, or strategic advantages, as scholars have shown in diverse realms (Patler 2018; Kemp and Kfir 2016). They also address this dilemma by strategically articulating different relationships between territoriality and political status when making their case before the court, emphasizing either one or the other, demanding congruence between them, or rejecting both. Thus, I demonstrate that human rights lawyers not only take advantage of the elasticity of political status and territoriality to shape the most favourable narrative for the client's case. They also strategically leverage the flexible interplay between these parameters.
Moreover, I argue that, when Israeli lawyers (re)formulate the different relationships between the two parameters, they challenge the very boundaries of the political community promoted by the state. By maneuvering the relationship between ‘territoriality’ and ‘political status’, they promote an indigenous community of Palestinians from both sides of the border, a nation-state with different borders, or a universal political community. Thus, the article also shows how the indeterminate relationship between territoriality and political status may be mobilized to advance discourses that challenge the (imagined) boundaries of the nation-state, which are based on a premise of congruity between these two parameters.
In Section 1, I examine the role played by territoriality and political status in restricting or expanding a state's obligation to uphold rights. In Section 2, I describe the characteristics of domestic human rights litigation in Israel/Palestine and the consequent dilemmas that arise for lawyers. Section 3 deals with the methodology and scope of the study. Section 4, the main body of the article, examines the different discursive strategies employed by the lawyers I interviewed (manipulating combinations of ‘territoriality’ and ‘political status’) to address the aforementioned dilemmas. In the conclusion, I analyse the political and theoretical implications of these strategies.
States use territoriality as a means to delineate their jurisdiction. However, as critical scholars have shown, the territorial jurisdiction of states is largely socially constructed or, at the very least, highly contingent (Braverman et al. 2014; Raustiala 2011; Agnew 2010; Elden 2013; Mainwaring and Walton-Roberts 2018). For example, religious sanctuaries or consulates in which the laws of the state do not apply have always compromised the integrity of state territories, and increasing globalization renders the territorial application of state laws contentious (Raustiala 2011; Thomaz 2018)).
Thus, the contingent nature of state territoriality opens up opportunities for states to manipulate the territorial application of their laws and delineate their responsibility to uphold rights (Maillet et al. 2018; Ballas 2022; Kelly 2006; Mainwaring and Walton-Roberts 2018). For example, states have the power to apply different classifications to the territories they rule—such as ‘occupied territories,’ ‘closed military zones,’ or ‘seam zones’—which allows them to apply the particular legal regime that best serves their purposes in any given moment. This move, among other ramifications, enables states to operate a scaled allocation of rights (Raustiala 2011; Kelly 2006; Ballas 2022). A prominent example is the case of detainee rights in Guantanamo Bay, where the United States (US) government initially argued that aliens detained in a foreign territory do not enjoy the same set of rights as those living within the state's territory, despite their being under US custody (Raustiala 2011; Turner 2016).
Another parameter by which states delineate their obligations to uphold rights is citizenship. Rather than one single status assigned to everyone residing in the territories they control, states assign different statuses—such as those of citizen, resident, refugee, or tourist—to different people. These indicate different degrees of political membership, with the corresponding (wider or narrower) set of rights. A multitude of scholars have described the significance of status in the attainment of rights, and the ambiguity entailed in status that allows states to shun their responsibility for ensuring those rights (Thomaz 2018; Mainwaring and Walton-Roberts 2018).
Although, as Brubaker (2010: 63) put it, ‘ideally, all permanent residents of the state should be citizens, and all citizens should be residents,’ in practice, the status of individuals is often far from congruent with the legal status of the territory in which they live. Citizens may live in occupied territories, illegal migrants may live in sovereign territories, and ‘protected persons’, as defined under international humanitarian law, may live in territories that are not occupied. By mixing and matching legal categories related to political status and territory, states are able to allocate rights in a differential way, granting citizens rights even when they do not live in their territory or preventing some individuals from enjoying the same range of rights as others (Thomaz 2018; Benhabib 2004; Brubaker 2010; Kelly 2006; Perolini 2022).
For human rights lawyers, however, the ambiguities surrounding the scope of these parameters also create opportunities. When the political status of a client or the legal status of the territory in which they live is ambiguous, lawyers may selectively base their arguments in court on those parameters that will provide their client with the most favourable rights regime (Schwiertz and Steinhilper 2021; Kemp and Kfir 2016; Kelly 2006; Patler 2018). Or, they can argue for a definition of the parameters that will benefit their clients. In their struggle to apply the right of habeas corpus in Guantanamo Bay, for instance, activists aimed to extend the responsibility of the US to areas that, while not part of its territory, are effectively under its control (Shinar 2017; Cornelisse 2011; Raustiala 2011; Agnew 2010).
This elasticity regarding how, and to whom, these parameters can be applied is useful not only for the clients but also, personally, for their lawyers, as it helps them circumvent many of the common dilemmas inherent in cause-lawyering. As a large body of scholarship has argued, cause lawyers, in general, and human rights lawyers, in particular, are often faced with dilemmas concerning the possible clash between the best interest of their clients and the greater cause (Schwiertz and Steinhilper 2021; Marshall and Hale 2014). The use of territoriality and status often poses such a dilemma for lawyers: pointing to the parameters of the state to define its responsibilities also means tacitly acknowledging its narrative about these parameters and, by implication, condoning historical injustices. One prominent example can be found in indigenous struggles in which petitioners and their lawyers wish to present an alternative narrative to that of the state, and are therefore reluctant to use citizenship as grounds for claiming rights (Yashar 2005). Another example is the litigation surrounding the rights of incoming refugees, in which arguing that individuals should enjoy certain protections when they reach dry land may imply consent to the legal framework that does not grant such protections to those arrested at sea (Nicholls 2014; Perolini 2022).
In this article, however, I show how it is not only the contentious nature of individual parameters but also the discrepancies between them that enable lawyers to circumvent the state's unjust manipulation of political status and territoriality.
Since its creation in 1948, Israel's territorial borders have been indeterminate. Following the 1947 UN Resolution on the two states in Palestine, the then-paramilitary troops expanded the territories allocated to Israel under the Partition Plan. Palestinian residents of these territories were granted citizenship but territories with a Palestinian majority were kept under military rule until 1966, thereby reducing the content of that citizenship (Ballas 2022). In 1967, Israel occupied additional territories and assigned them different territorial statuses. Moreover, the territorial status of the territories under Israeli control did not always align with the status of their residents (a situation that continues to this day). One example is the annexation of parts of these territories into the state's jurisdiction—a process in which their Palestinian residents were not incorporated as citizens; another example is the granting of full citizenship rights to Israeli settlers living in territories that are officially under occupation (Panepinto 2017; Ziv 2018; Ben-Natan 2021; Viterbo 2018; Weizman 2016).
This complex legal reality constitutes the bread-and-butter of human rights litigators in Israel. Human rights organizations primarily litigate their cases in domestic Israeli courts, mainly by means of petitions to the High Court of Justice, to obtain remedy for their clients or effect changes in policy (Weizman 2016; Kretzmer and Ronen 2021). Their legal arguments are based on domestic and international human rights law and humanitarian law. When considering the effects of the different legal regimes and their political implications, lawyers need to reconcile arguments that serve their clients’ interests with other weighty considerations, such as public opinion and constraints related to the financial support they receive from international funds or private donors (Weizman 2016; Jabareen 2010; Ziv 2018; Kemp and Kfir 2016; Gordon 2014). Furthermore, the organizations for which human rights lawyers work vary in terms of their political inclination, their commitment to particular sets of rights, and their interest in public opinion. Consequently, the lawyers, too, may voice different degrees of commitment to different ideologies, which is a further factor that will weigh on their decision to promote one argument over another.
Against this backdrop, there are many tensions that such lawyers face, depending on the specifics of the case in question. But, three primary client groups, in particular, pose complex quandaries related to the parameters of territoriality and political status.
Palestinian citizens of Israel
Israel's large indigenous Palestinian minority constitutes one-fifth of the state's population. It is separated from Israel's Jewish majority by a vast cultural, economic, religious, and national divide, and is systematically deprived of resources (Jamal 2011). Palestinian human rights litigation in Israel mainly relates to discrimination in land appropriation, resources, and political and social rights (Weizman 2016; Jabareen 2010; Jamal 2011).
Israel's Palestinian citizens are clearly included in the parameters that define the state's obligation to uphold human rights: they are residents of the state's territory and hold citizenship status. The dilemma posed by their legal representation therefore resembles similar dilemmas characterizing litigation for indigenous rights the world over: how to help clients benefit from the state's (often progressive) legal regime without undermining their indigenous narrative and collective claims (Weizman 2016; Jabareen 2010; Yashar 2005). Moreover, in the Israeli case, using ‘citizenship’ as the grounds for demanding rights implies an acknowledgment of the state-created divide between two categories of Palestinians: those who resided within Israel's borders at the time of its establishment and therefore received citizen status, and those who reside in the territories that were occupied in 1967, and therefore were not classed as citizens.
Palestinian residents of the Occupied Palestinian Territory
Jewish settlers in the OPT
In 1967, Israel occupied the West Bank, the Gaza Strip, the Sinai Peninsula, and the Golan Heights. Thereafter, the territorial status of each of these areas followed a different trajectory. The West Bank is usually labelled Occupied Territory and is under military rule, as was the Gaza Strip until 2005 (Ben-Natan 2017).
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In accordance with the 4th Geneva Convention, Israel recognized the status of the Palestinian residents of these territories as ‘protected persons’ (Viterbo 2018; Shinar 2017) and accorded them the rights set down in international humanitarian law. However, when demanding rights for Palestinian residents of the Occupied Palestinian Territory (OPT), lawyers increasingly use doctrines from Israeli domestic law (primarily constitutional and administrative law), which is characterized by a more generous human rights regime. Yet, such legal arguments are often viewed as an acceptance of the process of annexation—the gradual application of Israel's jurisdiction to the occupied territory (Panepinto 2017; Ben-Natan 2017; Shinar 2017). On the other hand, in recent years, human rights organizations have increasingly acknowledged a one-state reality, and there is growing concern that the use of the international humanitarian law obscures this reality (Ben-Natan 2022).
Immediately after the 1967 Occupation, and with the backing of state authorities, Jewish Israeli citizens established outposts in the OPT to strengthen Israel's hold over them. Although living in a territory that Israel regards as ‘occupied,’ these Jewish settlers enjoy full membership in Israel's political community (Shinar 2017; Kretzmer and Ronen 2021). Occasionally, they turn to human rights organizations with claims that their rights have been violated. The predicament this presents for the lawyers working for these organizations is especially acute. While settlers are the symbol of the Occupation, the fact that they belong to the opposite extreme of the political spectrum means that representing them offers the organizations an opportunity to demonstrate their universality and apolitical nature. However, this situation does create the dilemma of whether, and in which cases, to represent settlers, and to what extent the rights stemming from their citizenship should be acknowledged.
Scope
In this article, I seek to examine their responses to the many anomalies created by the manifold possible relations between status and territoriality associated with different profiles of clients. To this end, I focus exclusively on Israeli lawyers who work for organizations I consider generalist These organizations define their mandate as being to combat all human rights violations committed by the Israeli authorities, regardless of the victim's identity. In these organizations, there is a constant debate over which rights regime applies to whom, on what grounds, and what the political implications of the different legal arguments may be. Focusing on ‘generalist’ organizations enabled me to examine how the same lawyers modify their discursive strategies when representing clients with different political statuses and territories with different legal regimes, and the multiple ways in which they negotiate and interpret the relationship between territoriality and status.
In terms of process, I first drew up a list of human rights organizations using Gordon and Berkovitch's definition, which has two components: a subjective one, according to which an entity is a human rights organization if it defines itself as such, and an objective one, according to which an entity is a human rights organization if it works to promote one of the recognized international human rights treaties (Gordon and Berkovitch 2007). I narrowed the list down to include only generalist organizations (as defined above) and only those with legal departments. This filtering process yielded four organizations: the Association for Civil Rights in Israel (ACRI); the Public Committee Against Torture in Israel (PCATI); Rabbis for Human Rights (RHR); and Kav LaOved (Workers’ Hotline). All of them make public statements on their respective websites to the effect that they define themselves as generalists. 2 Some interviewees had previously worked for other human rights organizations and referred to their work there as well.
The research was conducted during the period 2012–2015. In the decade that has passed since I began the study, the situation has not changed in terms of the legal regimes applicable, and the same dilemmas regarding legal strategies continue to present themselves today (Kretzmer and Ronen 2021). However, human rights organizations in Israel have undergone two significant shifts. The first is a growing loss of legitimacy in the eyes of the public (Gordon 2014). This can be attributed to the general global trend of condemning liberal elites, the changing political climate in Israel, and also the increased willingness of human rights organizations to cooperate in international fora and committees—a move often perceived as tantamount to a betrayal (see, for example, the Goldstone Committee, Khoury-Bisharat 2019). The second, perhaps related, trend is the evolving discourse on the one-state reality, which has encouraged a growing reluctance to use the legal framework of the Occupation (i.e., international humanitarian law) in litigation (McEvoy et al. 2022). This dynamic is captured in recent human rights reports (Ben-Natan 2022). While early signs of these two trends can be discerned in the findings of this research, it is safe to presume they are more prominent today.
Methodology
I adopted a cultural approach to examine how the lawyers explain and justify their actions, with an emphasis on their explanations and interpretations (that is, discursive strategies) rather than the legal arguments they use in court (Ziv 2018; Golan and Orr 2012; Van der Vet 2014). I therefore used in-depth interviews as my primary data source.
According to the information provided on the organizations’ websites, a total of 22 lawyers were employed during the period of the study. Using the snowball sampling method, I drew up a list of a further nine lawyers who had previously worked for these organizations. Of these 31 lawyers, 25 agreed to be interviewed (9 men and 16 women; 14 Palestinian and 11 Jewish). Seven lawyers had left their respective organizations by the time the interview took place, and 18 were still employed there. Six lawyers were working or had worked for more than one human rights organization. All had earned their LL.B. degree from an Israeli university, and 10 had LL.M. degrees from Israeli or foreign universities.
The interviews were semi-structured and lasted between 50 and 90 min. I asked the interviewees general questions about their background, experiences in their organization and in court, dilemmas concerning the cases they would or would not take, and the different legal arguments they employ. I sometimes referred to cases that were in the news at the time, asking the interviewees whether the case had generated a debate in their organization and what their position had been. All interviewees signed a consent form, on the understanding that all data would be anonymized. 3
Most interviews were recorded and transcribed; in two interviews, I only took handwritten notes, at the interviewees’ request I subsequently reviewed the transcriptions and notes and extracted the main themes. All interviewees mentioned the professional dilemmas posed by the different types of clients and the effect of these dilemmas on their choice of legal strategy. While their answers varied according to their seniority, experience, type of work, and nationality, my focus here is on the dilemmas that were common to all. To ensure confidentiality, I assigned random letters to denote each interviewee. In the following sections, I present how, for the three aforementioned groups of clients, lawyers employ different discursive strategies to ease the dilemmas that the use of the parameters creates.
Emphasizing political status decoupled from territoriality (in cases involving Palestinian citizens of Israel)
When I say my client deserves this and that because he is a citizen with equal rights, I give the judges the opportunity to feel proud of themselves, to feel proud of the legal system, of the state, of their vocation. Here they are, protecting the ideal of ‘all citizens are equal.’
As we saw earlier, the parameters that define the Israeli State's obligation to uphold human rights clearly include its Palestinian citizens. Therefore, human rights lawyers seeking to assist such clients must deal with a fundamental challenge: how to avoid the unintended consequence that calling for rights under the state's legal regime for one individual might undermine the struggle of an indigenous narrative and collective rights. In their interviews, the lawyers voiced this challenge, explaining that using their clients’ citizenship as grounds to demand rights is effective precisely because it coincides with the state's endeavour to undermine indigenous identity:
However, basing a human rights claim on the demand for equal treatment of a petitioner as a citizen means renouncing the more radical claim of their birthright that stems from their indigenous status (Weizman 2016; Jabareen 2010; Yashar 2005). One interviewee described this trade-off as follows: What kind of story do I tell in court? … Do I use the term ‘native?’ I can do that. Fine. But I will not win the case.
In the case of the Palestinian minority in Israel, however, basing the demand for rights on citizenship does not merely erase internal boundaries; rather, its main effect is to accentuate external ones. According to some interviewees, using citizenship as the main grounds for demanding equal rights emphasizes the unnatural divide separating Palestinians in Israel from Palestinians in the diaspora, mainly those residing in the OPT. The price of using citizenship is, therefore, the construction of a civic political identity that is incongruent with the ethnic Palestinian one: The link with Palestinians across the Green Line [Palestinians from the OPT] is significant. The fact that the State of Israel was established along these borders and granted citizenship to those Palestinians residing within them … is incidental … If I say that they are citizens with equal rights, I accept that divide.
The above quotation points to the historic link between citizenship and the territorial borders of the state (Brubaker 2010). The Israeli State granted citizenship to certain Palestinians at a certain point in time based on certain territorial borders. Using citizenship as the grounds for demanding rights implies an acceptance of these territorial borders and of the boundaries of the political community they create, and bolsters one of the nation-state's main endeavours: to promote congruity between citizenship and territorial borders (Brubaker 2010). The merging of these two parameters promotes a civic identity that works against other, competing, identities and, in the view of some lawyers, is detrimental to the greater Palestinian cause.
However, a closer look at the interviewees’ words allows for an additional interpretation. Sometimes, they explained, they may sever the link between citizenship and territoriality when demanding rights. When decoupled from territoriality, citizenship can be mobilized to bolster an indigenous Palestinian political community. One example of such mobilization is the use of the Israeli citizenship of some Palestinians to promote the rights of other Palestinians: those living in the OPT (Weizman 2016; Shinar 2017; Masri 2013). As a rule, Palestinians residing in the OPT do not have the right to enter Israel freely, and numerous checkpoints and patrols enforce a comprehensive permit regime (Berda 2017). At the same time, as in many other countries, if an Israeli citizen marries an alien, they can initiate a ‘family reunification’ procedure through which they can obtain permission to reside in Israel and, eventually, citizenship for the alien spouse.
However, in 2003, the Knesset passed legislation that excludes Palestinian spouses from the OPT from this procedure, 4 and therefore denies them the right to reside in Israel. Several human rights organizations have petitioned the High Court of Justice to revoke this legislation. 5 One of the arguments is the right of Palestinians in Israel to marry whomever they wish and live with them in the country. By denying Palestinian citizens the right to a unified family, this law specifically discriminates against Palestinians because, among all the citizens of Israel, only they marry Palestinians from the OPT. When Jewish citizens marry citizens from other states, the latter will be granted the right to reside in Israel and become citizens through the ordinary procedure of family reunification.
As one lawyer explained, when demanding the right of Palestinian petitioners who are Israeli citizens to live with their spouses in Israel, one can promote the right of Palestinians from the OPT to marry, live, and move freely within Israel (Shinar 2017). Thus, D.F. justifies her use of citizenship as an act that challenges, rather than reinforces, territorial borders: In the family reunification case, we used the right of the Palestinian citizen, his right to have a family. That is very different from saying that Palestinians from the OPT have the right to live here. In a way, it's much more limited. But actually, and that's the beauty of it, it helps both groups—the Palestinians in Israel and the Palestinians in the OPT—fulfill their desire to be one people and live together.
Some of the lawyers noted that demanding rights on the basis of citizenship can also result in the actual restitution of land—a territorial achievement, even if it falls short of allowing them to articulate the entire indigenous narrative. One interviewee explained: I know that when I demand that a Palestinian family be given the right to purchase a home in a Jewish town because one must not discriminate against citizens, I actually accept the state's entire story. I don't want to forget … the history of the Palestinians in this land. I know that it will not bring justice in the wider sense of the word. But that is all I can do to help one Palestinian family live where they wish. I help them live wherever they wish, in their land.
In some ways, E.G.'s explanation echoes the arguments of critical scholars and lawyers who contend that using citizenship to promote land-rights impedes collective indigenous land claims because it focuses on individual rights and titles (Yashar 2005). This, in turn, echoes a wider dilemma of cause lawyers: when the client's interests clash with the general cause, which should be prioritized? (Marshall and Hale 2014). E.G.'s pride in her contribution stems from assisting one particular family, not from promoting the broader Palestinian cause. Nevertheless, one can also interpret E.G.'s words as linking the individual case to the collective Palestinian cause. The family has gained the right to live in a certain place because they are equal citizens—but the lawyer regards this outcome as an act of restitution in the context of the overall Israeli–Palestinian territorial struggle. She has enabled them to live where they wish, on land she personally regards as belonging to them. From this perspective, the actual restitution of land decouples citizenship from its association with the territorial borders of the state and attaches it to indigenous rights.
Both of these examples show how lawyers circumvent the dilemma created by their demanding rights for indigenous minorities on the grounds of citizenship. Rather than reinforcing territorial boundaries, their use of citizenship rejects its territorial implications. In the example of family reunification, the argument based on citizenship resulted, in the eyes of the interviewee, in the establishment of a link between Palestinians on both sides of the border, and diminished the affinity between Palestinians with Israeli citizenship and the country's Jewish majority. The argument that only Palestinian citizens are affected by the legislation that prevents family reunification for Palestinians from the OPT emphasizes the common ethnic identity of these two groups. In the second example, the lawyer explained that the reliance on citizenship emphasized the link of all Palestinians to the territory in a way that defies the territorial division created by the state. Thus, citizenship, decoupled from territoriality, is enlisted to promote the political community of the indigenous Palestinian people.
Emphasizing territoriality decoupled from political status (in cases involving Palestinians from the OPT)
The legal battles between Palestinian residents of the OPT and the Israeli authorities pose a different kind of challenge to human rights lawyers. Here, their dilemma stems from a desire to use Israel's relatively progressive laws to promote their clients’ cases without recognizing the legitimacy of Israeli control over the OPT (Viterbo 2018; Ziv 2018; Ben-Natan 2017; Jabareen 2010; Kretzmer and Ronen 2021). As in the case of Palestinian citizens of Israel, lawyers may separate territoriality from political status. But, while, in the aforementioned cases, citizenship was used to diminish the role of territorial borders, here, territoriality trumps political status as grounds for demanding rights.
Ever since Israel occupied the Gaza Strip and the West Bank in 1967, the state's official legal position has been that the OPT is not subject to its sovereign territory and jurisdiction (Viterbo 2018; Shinar 2017; Kretzmer and Ronen 2021). Nevertheless, Israel allows Palestinians to petition the High Court of Justice; and, over the years, this practice has become increasingly common (Kretzmer and Ronen 2021). However, some have questioned whether it is politically wise for Palestinians from the OPT to use this option, since it may have a legitimizing effect on the Occupation (Hajjar 2017; Shinar 2017; Kretzmer and Ronen 2021; Sultany 2014).
A different question concerns the set of rights such petitioners can claim. When they petition the Israeli High Court of Justice, they can claim that the state is obliged to respect their rights as ‘protected persons’ living in a territory under occupation. The nature and extent of these rights are set out in international humanitarian law. 6 However, petitioners may also base their claims on Israeli domestic constitutional and administrative law, which has a more generous human rights regime. Whereas domestic law ostensibly applies only within sovereign territorial borders, in practice, scholars have noted its increased application to the OPT (Panepinto 2017; Ben-Natan 2017; Shinar 2017; Sultany 2014).
In making this appeal to the territorial application of domestic law, human rights lawyers run the risk of giving their de facto endorsement of Israel's drive to have its jurisdiction apply to the occupied territory: as scholars and human rights practitioners have pointed out, the application of Israel's domestic law to an ‘occupied territory’ may imply annexation (Ben-Natan 2017; Shinar 2017). Should lawyers hold the state to its obligations under international law, then, which emphasizes the territorial distinction between the two areas? Or should they instead turn to domestic legal doctrines that provide a better rights regime but imply cooperation with—and approval of—the process of annexation?
To circumvent this dilemma, interviewees explained how they emphasize the territorial control of the state but decouple it from the political status of residents of the OPT. Several interviewees referred to a petition by human rights organizations demanding that the state shorten the period for pre-trial detention permitted under the military decrees (the law that applies in the OPT). They explained that one of the main arguments in the petition centres on discrimination: when Palestinians living in the OPT are arrested, they are subject to military decrees that permit long periods of arrest before judicial review. Jewish settlers living in the same territory and facing the same charges are subject to the more progressive Israeli law of detention. This distinction is discriminatory. One interviewee described how her organization decided to handle this case: There was a lot of debate about this petition because we didn't want to say that the Palestinians in the Territories deserve the same rights as citizens, since that would be acknowledging what is actually going on, you know, the annexation that is going on. We also didn't want to ‘downgrade’ the rights of the settlers to those of the Palestinians. Well, perhaps some of us did, but no one would admit to that because we are human rights people. We cannot demand the downgrading of anyone's rights.
Another interviewee said: [The organization] decided to go for ‘equality.’ I thought that was a smart way of putting it, a good way of showing the world what is actually happening without using the word ‘apartheid,’ to show that there are two systems of rights in the OPT. In the same area, two people enjoy different rights. That sounds unfair, right?
Both of these lawyers use territory as a yardstick for comparison, as a parameter that is supposed to grant the same rights to all residents of the same territory. Rather than arguing that Palestinians in the OPT deserve the same rights as Israeli citizens, they claim that they deserve the same rights as the Jewish citizens living in the OPT. By emphasizing the territorial parity between the two groups and de-emphasizing their disparate legal status as citizens or residents, they demand a better rights regime for Palestinian petitioners, without supporting annexation.
This position echoes some of the literature on the use of territoriality in human rights cases. In some such cases, lawyers do not entirely accept the state's argument that violations have taken place outside its territory. Rather, they contend that, in the case of human rights, a state's territory should be understood to include areas under its effective control, even if these lie beyond its sovereign borders (Shinar 2017; Raustiala 2011). This argument does not discard the principle of territoriality as the key to demanding rights but changes its interpretation by altering the territorial contours of the state. Highlighting territoriality at the expense of political status circumvents the dilemma of annexation but results in a depiction of the boundaries of the political community that is territorially bound. According to this depiction, the responsibility of the state to uphold rights is defined primarily by territorial parameters. However, in this case, the borders of this territorial entity are different from the ones propagated by the state.
Moreover, as mentioned earlier, recent years have seen a growing acceptance within the human rights community of the one-state reality (Ben-Natan 2022). According to this perception, human rights struggles should discard the paradigm of occupation and instead relate to the whole territory under Israeli control as a single entity, in which individuals should enjoy equal rights. This paradigm, too, accepts the territorial premise of the state's jurisdiction but it seeks to promote territorial borders that will include both Israel and the territories. It remains to be seen whether this will affect future human rights litigation.
Emphasizing (in)congruence (in cases involving Jewish settlers in the OPT)
Demanding congruence between political status and territoriality
While, in the case of Palestinians living in Israel or those living in the OPT, the lawyers take advantage of the discrepancy between territoriality and political status, in the case of the representation of Jewish settlers, they may advocate for congruence, arguing that the discrepancy between the two parameters can serve as grounds for refusing to represent settlers, with all the sensitivities that such representation would entail. Alternatively, when referring to cases in which they have represented settlers, the interviewees explained that they had rejected the parameters of territoriality vs. political status altogether and had turned, instead, to a universal perception of human rights that is not based on any form of membership in the political community (Mann 2016; Struthers 2016).
Approximately 400,000 Jewish Israeli citizens currently live in the OPT.
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As mentioned earlier, the ‘settlement project’ began immediately after the Occupation, and, in the ensuing decades, Israel extended most of its laws to the Israeli citizens living there by means of military decrees (Kelly 2006). Settlers are subject to Israeli domestic law, Israeli courts, and civilian law-enforcement authorities, regardless of where the alleged offense was committed. They are Israeli citizens living in an external territory, albeit a special one, where they are entitled to the full rights of citizens.
Claims by settlers that their rights have been violated pose a uniquely complex challenge to many human rights activists in Israel. Given that settlers epitomize the very opposite extreme of the political spectrum, such cases may appeal to some human rights organizations because their involvement lends them a less partisan profile and helps appease some of their critics. As one interviewee explained: For us as an organization, representing settlers is important. In this way, we can show the public that we are not just fighting against the Occupation or for Palestinian rights. It shows that we are truly universal.
But, unavoidably, as a symbol of the Occupation and the expropriation of Palestinian land, settlers are perceived by human rights activists as facilitators of the state's human rights violations. They are seen as the ultimate privileged group, enjoying full political membership, extended welfare rights, and a prosecution policy of turning a blind eye when accused of crimes against Palestinians.
Interviewees expressed their reluctance to represent settlers by pointing to the discrepancy between territorial borders and citizenship, as reflected in the fact that settlers have the status of full citizens despite living outside the state's territory. One case they mentioned concerned a complaint of discrimination in a public school in a community of Jewish settlers. In the ultra-Orthodox settlement of Emmanuel, an ethnic-based separation was enforced between girls from Mizrahi 8 and Ashkenazi backgrounds, a case of ethnic discrimination within the settler population.
When describing the deliberations on whether their organization should take on the case, some lawyers argued that the Mizrahi girls were victims of discrimination. In this argument, the place where this discrimination takes place—the OPT—is irrelevant. As minors, the girls should not be punished for their parents’ decision to live in the OPT. They noted that, within the generally privileged settler population, some communities suffer discrimination, and they felt it was their duty to address this. However, other interviewees held that the settlement project itself created a much more obvious and brutal form of discrimination, and that representing the girls would be a case of ‘ignoring the elephant in the room.’ Moreover, winning this struggle might strengthen the settlements, for example by justifying the construction of new schools. One interviewee expressed the opinion that the organization should not take on cases in which settlers seek to exercise rights in the OPT. This stance articulates a demand for congruity between citizenship and territorial borders: citizens’ rights can only be realized within the territorial borders of the state: I expressed my opinion that I am willing to represent a settler who wishes to demonstrate in Tel Aviv, for instance, or whose civil rights were violated. But the organization should not represent him when it comes to his rights in the occupied territory, even if it concerns a school.
Another interviewee referred to another case concerning Jewish citizens of Israel demanding to realize their rights in the OPT. They described the organization's deliberations over whether it should represent the extremist right-wing Temple Mount Faithful movement, whose members held weekly demonstrations on the Temple Mount in occupied East Jerusalem to strengthen the Jewish presence in the area. In one instance, the police refused to give them a license, for fear that rioting would ensue. Though the movement's members are not necessarily settlers, the case involved the demand of Israeli right-wing extremist citizens to exercise their right to demonstrate outside the territorial borders of the state, in occupied territory. J.L. described the internal conflict this matter generated in his organization as follows: The meeting was about the freedom of speech of the Temple Mount Faithful movement. Some people [said] that the movement wished to hold a demonstration on the Temple Mount, that it was a matter of freedom of speech, and that freedom of speech is for everyone, even if we don't agree with them. I interrupted and said: ‘Gentlemen, where do Jews get the right to demonstrate on the Temple Mount? That right comes from the Israeli occupation there. You talk about it as if the right is neutral, but it exists because you are occupiers. You create power and power grants rights and obligations, and then you say it is freedom of speech … The demonstration on the Temple Mount is part of the oppression of the Palestinians.’
According to J.L., those who supported the representation of the demonstrators were ignoring the criteria of territoriality and citizenship—or, rather, ignoring the state's creation of a discrepancy between these two parameters in order to allocate rights in a discriminatory manner. This interviewee, who objected to taking on the case, pointed to the territorial aspect of the realization of rights, which only existed because of Israel's effective control over the area. The state should not have decoupled citizenship from territorial borders, he explained; but, once decoupled, citizenship should not trump territorial borders. By phrasing the situation in terms of citizenship and territoriality, J.R. also promoted his professional standing, claiming that it was not his political sentiments or affiliation that made him object to taking on the case but, rather, the fact that the parameters of territoriality and status were incongruent.
Rejecting both territoriality and political status: Using ‘humanity’ as grounds for a human rights claim
It didn't matter to me that one of the suspects was a settler. The right to be free of torture is for everyone. I think what they did is appalling, but that shouldn't matter. No one should be tortured, anywhere. Maybe they [the settlers] don't want us to represent them, but that's another matter …
In cases where the lawyers did represent Jewish settlers whose rights were violated, they explained that the basis for demanding rights was neither citizenship nor territoriality, but ‘universal humanity’ (Mann 2016). That is, they moved to reject both parameters. Generally, these cases related to allegations of torture in interrogations. One interviewee described a case in which the organization objected to the use of violent methods in the interrogation of three young members (including a minor) of an extremist right-wing organization, who were accused of murdering a young Palestinian boy:
The interviewee portrayed the right to be free from torture as a universal right, regardless of the victims’ citizenship and place of residence. Note that the lawyer could have used the petitioner's citizenship to strengthen his case, as citizens enjoy a variety of procedural rights meant to protect them from abuse of power—and a claim that these rights were not protected provides a useful argument in court (Patler 2018). However, that would have meant accepting the settlers’ superior status over the more typical clients in cases of torture during interrogation—namely, Palestinian residents of the OPT. It might also have implied that the state has less of an obligation to refrain from violent methods when interrogating Palestinians who are not citizens of Israel. Furthermore, the interviewee does not say here that the right to be free of torture is only valid in Israeli territory or in areas under its control. Rather, he uses a truly universal criterion for the state's obligation to refrain from torture.
One may assume that the universality associated with the right to be free from torture led the lawyer to take this position, or that territory was not a parameter on which to base the demand for rights because torture commonly takes place under the auspices of the state, so that the actual location of the interrogation facility is of minor importance (Shinar 2017; Raustiala 2011). However, a similar position was also expressed regarding police violence, which does not enjoy the same status. Another interviewee expressed his feelings about defending settlers injured as a result of police brutality in a demonstration against the evacuation of a settlement: This is, for lack of a stronger word, rude. To demonstrate against the police who come to evacuate you from land that you stole? It's not rude, it's outrageous! Of course they don't have any ‘right’ to demonstrate there. But that doesn't mean that they can be beaten up. No one should be beaten up, even if the demonstration is illegal. I am willing to protect that right. Not that I love the idea of going into a settlement and talking to the police for these guys. But I’m willing to do it.
Here, too, both political status and territoriality are discarded in favour of a universal perception of human rights that, according to this lawyer, stems from a general criterion of humanity rather than from the fact of belonging to a certain political community. The result is the depiction of a global political community with no boundaries but with weak ties between its members (Mann 2016).
The literature on human rights litigation, in general, shows that claims for the human rights of aliens or for those living outside the territory are often based on arguments that involve universality, humanity, and the sanctity of the human body or life (Cornelisse 2011). When petitioners are not citizens and do not live in the sovereign territory of the state, lawyers will often resort to these arguments (Kemp and Kfir 2016; Mann 2016). Here, however, the petitioners are full members of the political community. They have citizenship, are tried in state courts, and belong ethnically to the ruling group. The lawyer's choice of argument will not benefit the petitioner, who may gain more by using his citizenship to demand a more favourable rights regime. Rather, it benefits the lawyer (Kemp and Kfir 2016), as it helps them to avoid condoning what they view as excessive rights being granted to privileged settlers. Moreover, when a human rights claim is based on universal grounds, it does not require the litigator to personally identify with the victim, and thus allows the former to maintain their ideological distance from the latter while still representing them effectively.
Conclusion
This analysis of human rights lawyers’ use of ‘political status’ and ‘territoriality’ in justifying the legal arguments they use highlights the indeterminate nature of these parameters, which can be manipulated to selectively include a specific individual within the scope of the state's obligations to uphold their rights. Certainly, the context of Israel/Palestine, with its poorly defined state borders and its ethnic hierarchy within a semi-occupied sovereign territory, is highly convoluted in terms of defining the boundaries of the state's obligations. However, the indeterminate nature of the two parameters can easily be discerned in other human rights struggles currently taking place in the world, such as the flow of refugees, the extraterritorial application of state obligations, and the application of human rights in territories with an uncertain legal status. In these cases, too, the indeterminate nature of the parameters may be harnessed to obtain remedies for victims of human rights violations (Schwiertz and Steinhilper 2021; Kemp and Kfir 2016; Kelly 2006; Patler 2018).
What this article shows, however, is that lawyers do not merely make use of the flexibility of the parameters. Rather, they depict a flexible nexus between them. By reformulating and reconstructing this nexus differently in different contexts, strategically choosing one legal regime over the other, lawyers can circumvent the political predicaments inherent in human rights litigation. In the interviews, however, they explained their choices and emphasized the importance of decoupling these parameters from one another. Using one parameter at the expense of the other enables them to benefit their clients, while at the same time mitigating any implications that they considered unjust
Moreover, the findings show that, by depicting varying relationships between these parameters, lawyers delineate three alternative political communities: an indigenous community, a nation-state whose territorial borders differ from the territorial borders defined by the state, and a universal community whose boundaries are of little importance. As some lawyers mentioned, their strategy is often purposeful, a direct response to the injustices created by the state's manipulation of the parameters.
Thus, the findings show that it is not just that struggles over the definition of parameters (territoriality vs. political status) result in promoting new political boundaries. In addition, different combinations of these two parameters can draw boundaries around the political community that differ from those set by the nation-state and that can reinforce narratives that compete with those promoted by the state. In other words, the discrepancies between states’ different ways of defining their borders are not only useful to states; they are also useful to those trying to challenge them.
Unquestionably, the strategic use of the parameters is possible not only thanks to the discrepancies between the boundaries they create but also because of the very nature of human rights, which can be based on a wide range of moral and legal grounds (Mann 2016). This flexibility of the human rights discourse is a result of a long trajectory of lawmaking and practical experience that has created a body of knowledge on ways of using the state's resources without necessarily accepting its criteria of inclusion or exclusion (Mann 2016). Together, the loopholes inherent in jurisdictions of the nation-state, combined with the ambiguities in the legal–cultural discourse on human rights, can result in the construction of ever-shifting boundaries of political communities.
The present findings should be read bearing in mind that, due to their very nature as generalists, the human rights organizations featured here are very much bound by a universalistic human rights discourse. A further comparative study might examine the interpretations of lawyers working for human rights organizations devoted to specific clients/populations (Weizman 2016; Jabareen 2010; Hajjar 2017). Such organizations may perhaps commit to just one formulation of the relationship between territoriality and status. What the focus on generalist organizations allows me to do, however, is to show how the relationship between the parameters of status and territoriality is contingent, and how lawyers can use multiple strategies for different clients.
As mentioned above, in recent years, there have been certain developments that amplify the problematic use of territoriality and political status by the State of Israel. A growing body of commentators and public reports by Israeli and international human rights organizations has questioned whether the framework of the Occupation, with the anomalies it creates, is indeed the right one for the situation in Israel/Palestine (Ben-Natan 2022). The interviews took place before these reports were published, when the one-state/apartheid paradigm was already present in the organizations albeit perhaps not in the same way as it is today. Further research is needed to examine whether these developments, as well as the growing criticism and reduced legitimacy of Israeli political discourse, accentuate the strategies described here or whether they will cause a backlash that will downplay them.
Footnotes
Acknowledgements
The author would like to thank Yehouda Shenhav, Michal Frenkel, Smadar Ben Natan, Adriana Kemp, Itamar Mann, Netanel Dagan and Rachel Stroumsa, and the anonymous reviewers for their helpful comments and suggestions. The research was conducted at The Hebrew University and was supported by The Nathan and Judith Feinberg Support Grant for Research in International Law, The Hebrew University (2021).
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article
