Third World Quarterly, Vol. 27, No.

5, pp 923 – 936, 2006

Exiled to a Liminal Legal Zone: are

we all Palestinians now?
LAURIE KING-IRANI

ABSTRACT For the past 60 years Palestinians have been positioned in a liminal
political zone in a global system of nation-states. Although the Palestinian
refugee crisis is the oldest and largest in the world, Palestinians are also
relegated to a liminal legal zone in that the UN-established institutions such
as the UNRWA to deal with the Palestinians’ needs and demands through
exceptional channels outside the jurisdiction of the UN’s human rights regime.
As a consequence, Palestinians’ rights are always open to question and fre-
quently violated, whether they are living under occupation, as second class
citizens in Israel, or as refugees in surrounding Arab countries. Although the
Palestinian diaspora is situated in a variety of countries, legally the Palestinians
are nowhere. This article examines the liminal legal zone to which Palestinians
have been exiled, particularly in regard to refugee rights, but also in the
context of international humanitarian law and international prosecution of war
crimes committed against Palestinians. In examining this liminal legal zone,
the article also notes that in the age of the global ‘war on terror’, we are all
at risk of becoming Palestinians as legal guidelines and guarantees are eroded.

[Refugees] occupy a problematic, liminal position in the national order of

things—an order that, despite its historical recency, presents itself as ancient
and natural . . . The nation is always associated with particular places and times,
yet simultaneously constitutes a supra-local, transnational cultural form . . .
One of the most illuminating ways of getting at the categorical quality of the
‘national order of things’ is to examine what happens when this order is
challenged or subverted. Refugees present precisely such a subversion . . .
Refugees represent an attack on the categorical order of nations . . . But people
can categorise back: the possibility of creative subversion of the national order
is already written into its classificatory processes themselves.1

Though much has been written about the dark side of law as a tool for
domination, the lighter side of law projects possibilities for democratic
empowerment. And the life of the law is the plaintiff, who, perhaps unwittingly,
makes modern history, whether it be in small democracies found in local
communities, or in contemporary state democracies, or even in larger scale
configurations at the international level.2

Laurie King-Irani can be contacted by email: zinjabeel@mac.com.

ISSN 0143-6597 print/ISSN 1360-2241 online/06/050923–14 Ó 2006 Third World Quarterly

DOI: 10.1080/01436590600780375 923
 LAURIE KING-IRANI

Power should be used for justice. Power should be used to ensure that each
one has and preserves his or her right. If not, it’s the worst kind of terrorism
there is.3

As a diaspora of over nine million people, Palestinians are everywhere:

second-class citizens of Israel, stateless residents of fragmented and walled-in
Bantustans in the occupied West Bank, refugees residing inside and outside
of camps in Lebanon, Syria, and Jordan; and immigrants, students,
professionals and nationalised citizens in virtually every country in the
world.4 Palestinians dwell in the ‘First’ as well as the ‘Third’ worlds,
economically speaking. Among the far-flung Palestinian diaspora are some of
the poorest as well as some of the wealthiest people in the world. In the
framework of international law, however, Palestinians are virtually nowhere.
As stateless persons they occupy a liminal and interstitial space in the
international legal and political order, an order that (contemporary
discourses of cosmopolitanism, globalisation and emergent transnational
organisations aside) remains founded upon and grounded in the interests of
sovereign nation-states rather than in the claims of sub- or transnational
actors, whether individuals or groups.5
Palestinians reaped few if any benefits from the late 20th century
florescence of international humanitarian law (IHL),6 an era that witnessed
a serious international focus on human rights and ‘policing the past’, as well
as the establishment of the first ad hoc international criminal tribunals in half
a century to address massive human rights violations (including genocide) in
Africa and Europe. The defining event of the 1990s for Palestinians was the
signing of the Oslo Accords and the now-famous handshake between PLO
Chairman Yasser Arafat and the late Israeli Prime Minster Yitzhak Rabin in
1993.
Oslo, however, was not founded on international law or treaties but,
rather, constituted a negotiated agreement between unequal partners. It was
an agreement that side-stepped the Universal Declaration of Human Rights,
UN General Assembly Resolution 194 (concerning the rights of Palestinian
refugees), UN Security Council Resolutions 242 and 338 (censuring Israel’s
acquisition of territory by force), the Fourth Geneva Convention’s
limitations on the actions of an occupying power, and a bevy of annual
reports, issued by such bodies as the UN Human Rights Commission, the
International Jurists Commission, and the International Committee of the
Red Cross, emphasising Israel’s duty to uphold IHL and to abide by all of
international treaties it has signed.7
The Oslo Accords (the Declaration of Principles— DOP) did not represent
a legally binding, international document, but a slippery ‘deal’ or ‘under-
standing’ brokered by the USA, a superpower actor with a long record of
supporting Israel regardless of its failure to comply with international
humanitarian norms.8 Rather than being empowering, conciliatory, or
liberating the Palestinians from a chronic state of legal and political
liminality, the Oslo process ultimately proved to be a coercive set of
mechanisms that further entrenched Israeli control over Palestinian land.
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It also set precedents for a dangerous attenuation of IHL’s relevance to the

overall Israeli – Palestinian conflict.9
Following the Al-Qaida attacks on New York City and Washington, DC
on 11 September 2001, IHL’s growing focus on the needs of individual victims
was eclipsed once again by the interests of sovereign states, or, as Hajjar
terms them, hyper-sovereign states.10 The USA and its ally, Israel, are the
chief embodiments of hyper-sovereignty, a political and military stance
characterised by pre-emptive policies, a distaste for multilateral legal
frameworks to counter emerging extra-state threats, and a pronounced
reliance on overwhelming unilateral force that often violates IHL, interna-
tional human rights law (IHRL) and UN resolutions, while rendering
international diplomacy beside the point.
The travails of the Palestinian people since 1948 offer a disturbing, though
highly instructive, reverse-image view of the contours and limitations—as
well as the possibilities—of an international legal order. The ongoing
Palestinian tragedy also illuminates serious contradictions in prevailing
discourses of human and civil rights, exposing ambiguities in prevailing legal
definitions of, and guarantees for, human beings.
Since the war on terror (a war on an abstraction) was launched, respecting
no boundaries, knowing no frontiers, and thus admitting no distinctions
between ‘foreign’ and ‘domestic’ jurisdictions, people of diverse nationalities
and social classes are discovering what it means to lose rights previously
guaranteed by law. Being a citizen in possession of a valid passport no longer
ensures protection against the surreal world of the Patriot Act, extraordinary
renditions, torture, ‘targeted killings’, and a UN-approved military occupa-
tion in Iraq.
As noted by UK Law Lord Johan Steyn in the 27th FA Mann lecture:

The world’s most powerful democracy is detaining hundreds of suspected foot

soldiers of the Taliban in a legal black hole at the American naval base at
Guantánamo Bay in Cuba, where they await trial on capital charges by military
tribunals . . . The same courts would refuse to hear prisoners who assert that
they were not combatants at all, or that they were simply soldiers in the Taliban
army and knew nothing about Al-Qaeda. [A] blanket presidential order
deprives them of any rights whatsoever. As a lawyer brought up to admire the
ideals of American justice, I have to say that I regard this as a monstrous failure
of justice.11

In the post-9/11 era alienation, uncertainty, powerlessness and exile are no

longer experiences confined to the ‘wretched of the earth’. The endangering
of what Hannah Arendt described in her 1973 masterpiece, The Origins of
Totalitarianism, as ‘the juridical sense in humankind’ affects First World as
well as Third World societies in different, but similarly disturbing, ways. The
diminution of international legal frameworks means that law-abiding and
politically enfranchised citizens of any nation-state can now experience the
insecurity that has dogged stateless Palestinians like a dark shadow since they
were forcibly exiled from their homes in 1948 and banished to the liminal and
nightmarish realm of refugee-hood.
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Americans, Britons, Canadians and Australians, no less than Syrians,

Jordanians, and Pakistanis, are now vulnerable to being ‘disappeared’ into
the aforementioned black hole, an extraterritorial non-place where the light
of law and justice does not shine. Should they fit a ‘suspicious’ profile—Arab,
Muslim, leftist, radical, critical, or foreign—as defined by the new organs of
Homeland Security, they may be divested of key protections ascribed to
human beings by the international legal documents and institutions
established following World War II.
A world without laws is a world in which everyone is vulnerable to abuse,
powerlessness and the experience of literal or figurative homelessness. IHL
and IHRL are indeed among the ‘collateral damage’ of the war on terror.
Unless this trend is halted and reversed by concerted and serious multilateral
and popular efforts, it may soon be accurate to ask, echoing the Le Monde
headline of 12 September 2001 (‘We are All Americans Now!’) ‘Are we all
Palestinians now?’.
Kenneth Roth recently sounded the following alarm in his introduction to
Human Rights Watch’s 2006 World Report:

‘Practice what I preach, not what I do’ is never terribly persuasive. Yet the US
government has been increasingly reduced to that argument in promoting
human rights. Some US allies, especially Britain, are moving in the same
disturbing direction, while few other powers are stepping in to fill the breach.
This hypocrisy factor is today a serious threat to the global defence of human
rights . . . The US government’s use and defence of torture and inhumane
treatment played the largest role in undermining Washington’s ability to
promote human rights. In the course of 2005, it became indisputable that US
mistreatment of detainees reflected not a failure of training, discipline, or
oversight, but a deliberate policy choice.12

For Palestinians, the post-9/11 world order is far from novel, qualitatively
speaking. They have inhabited a legally nebulous realm for nearly six decades,
subject to torture, collective punishment, severe limitations on freedom of
movement and political expression, the continuing appropriation of land,
property and resources in violation of the Fourth Geneva Convention,
targeted assassinations (ie extrajudicial executions), wilful killings, home
demolitions and ethnic cleansing. As refugees outside Palestine, or as occupied
communities within the West Bank, they are denied due process and are
routinely under surveillance, dehumanised and imprisoned without charge.
Quantitatively, in terms of numbers killed, dunams (approximately 1/4 acre)
stolen, or homes destroyed, Palestinians in the West Bank and Gaza have
suffered disproportionately in the past 10 years. A quarter of a century ago
Palestinian refugees in Lebanon were the primary targets of Israeli military and
intelligence operations, which failed to meet minimum objective standards of
compliance with IHL. Israel enjoyed impunity then, just as it does now.
Israel’s 2005 departure from Gaza, hailed as a bold and brave step towards
peace, was in fact yet one more cynical reminder that Israel does not
recognise a legal partner, ie that Israel does not grant legitimacy or sovereignty
to any Palestinian entity, and that without external enforcement measures,
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probably never will. Israel’s unilateral cancellation of Palestinians’ collective

political and legal existence is enabled by unquestioned discourses of ‘a global
war on terror’, a battle of good versus evil that requires extraordinary
measures to protect civilian populations of nation-states. Physical borders are
protected and vigorously policed, but conceptual and legal borders are erased
as hegemons expand and enlarge their claims of sovereignty to include the
virtual world of cyberspace, deterritorialised networks practising asymmetrical
warfare, and even the territory of other sovereign states. The ultimate
expression of this tendency to blur the boundaries of international law and
sacrifice human rights to exaggerated notions of security is Guantánamo,
which, although far from Palestine, can serve as a metaphor for the most
painful aspects of Palestinians’ lives for the past 58 years.
Ironically, the ethnic cleansing of Palestinians from their cities and villages
in 1948 coincided with momentous advances in the postwar legal landscape:
the establishment of the United Nations and the International Court of
Justice, and the drafting and acceptance of the Universal Declaration of
Human Rights, the Convention Against Genocide and the 1949 Geneva
Conventions. Yet Palestinians have never had a firm place from which to
claim their human, let alone citizenship, rights in the post-1948 legal
landscape. Seeking what they hoped would be temporary refuge in Syria,
Lebanon and Jordan, Palestinian refugees quickly posed acute social,
cognitive and political quandaries for newly formed Arab states struggling
with the challenges of nation formation, thus threatening emerging categories
and practices of national identity.
Whether on Palestinian soil or abroad, Palestinians have always fallen
through the administrative, moral, legal, and political classificatory schemes
of the post-World War II era. So far, they are not faring much better in the
post-11 September era. Palestinians continue to constitute ‘exceptions to the
rule’ of international law.

Palestinian exceptionalism
As the first and largest of what would be many refugee crises in the post-
World War II era, Palestinians are exceptional in having special UN
resolutions and agencies created just for them. This is not, however, an
advantage. The establishment of the United Nations Relief and Works
Agency (UNRWA) and the UN Conciliation Commission on Palestine
(UNCCP) unintentionally placed Palestinians outside the emerging legal
classifications of, and responses to, humanitarian crises resulting in mass
displacements. As legal scholar Susan Akram observes:

Palestinian refugees have a unique international status. Article 1D of the 1951

Convention Relating to the Status of Refugees (Refugee Convention) and its
1967 Protocol has been interpreted to exclude Palestinian refugees from the
coverage of those instruments. Paragraph 7(c) of the Statute of the United
Nations High Commissioner for Refugees (UNHCR) has been similarly
interpreted as precluding that agency from a mandate to protect Palestinian

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refugee rights. Finally, the dual mechanism set up to guarantee both protection
and assistance for Palestinian refugees—the United Nations Relief and Works
Agency for Palestine Refugees in the Near East (UNRWA) and the UN
Conciliation Commission on Palestine (UNCCP)—failed for historical and
political reasons. [W]hen the UNCCP discontinued its protection mandate, the
fallback mechanism under Article 1D of the Refugee Convention—which was
to automatically expand coverage of the Refugee Convention regime to
Palestinians if either UNRWA or UNCCP ceased to function—was never
implemented. Thus, under almost universal interpretation, these instruments
have been found to exclude Palestinian refugees from the international legal
rights afforded all other refugees.13

(The United Nations did not mean to harm Palestinian refugees, but rather,
to give special attention and assistance to a group made homeless partly as a
result of UN resolution 181. Also, it is important to note that the UN has
consistently affirmed the rights of Palestinian refugees to return to their
homes or to be compensated as soon as possible. This acknowledgement of
the Palestinian refugees’ right to return is embodied in the Universal
Declaration of Human Rights as well as in UN General Assembly Resolution
194. Although the General Assembly has reconfirmed Resolution 194
annually, and despite a consistent and nearly unanimous international
censuring of Israel’s persistent refusal to abide by the international treaties it
has signed, Palestinians’ status and quandaries in the nation-state system
have not changed since 1948.)
Even with a representative present in the UN, Palestinians have made little
headway in altering their liminal legal status. It is not just power politics or a
lack of Palestinian political, media and legal know-how that account for this
(though these are important factors), but also Israeli and US unwillingness to
alter established cognitive maps of the region, and indeed the world as well.
Respecting Palestinian refugees’ right of return would require profound
conceptual transformations, and would no doubt constitute a landmark legal
precedent for all those trapped by politics or poverty in the margins of the
Third World, devoid of adequate state protection.
Palestinian refugees, unlike other groups—labour migrants, Kurds, internally
displaced persons, and Native Americans among others—forced into difficult
straits by the prevailing political and economic world order, are sui generis in
having no recourse to any national legal representation or protection, since they
have no nation to return to. Despite a blood-soaked history of displacement,
discrimination, dehumanisation and genocide, Native Americans are, by virtue
of legally binding (though frequently breached) treaties with the USA and
Canadian governments, invested with legal identities, jural standing and
citizenship rights that Palestinians cannot yet claim, even a decade after the
creation of the Palestine Authority. Despite severe repression and victimisation
by Iraq, Turkey and Iran, Kurds are still citizens of states, not refugees lacking
the aid of the UN High Commissioner for Human Rights (UNHCR).
Perhaps the closest analogy to the Palestinian situation is that of South
Africa during apartheid. Although it took the international community a
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long time, it did finally wake up to and take action against institutionalised,
state-sanctioned racism and systematic human rights violations in South
Africa. A similar scenario is not likely to unfold in Palestine, however, until
demographic realities challenge Zionist ideologies and practices, or until
those who defend Palestinians human and political rights are no longer
tarred with the brush of ‘anti-Semitism’ for criticising Israeli policies. Given
the rampant demonisation of Arabs and Muslims in media representations
and political rhetoric since 9/11, as well as the launching of the war on terror
in which the USA and Israel are assumed to be fighting on the same side
against ‘Islamic extremism’, international solidarity with the Palestinian
cause is less likely to achieve the positive results many observers expected just
a decade ago.
Similarly, Palestinians are exceptional in being obstructed, a priori, from
accessing justice and claiming their rights through the newly established
International Court of Justice (ICC) at The Hague. Given the temporal and
territorial limits of the ICC’s jurisdiction, Palestinians, whether refugees or
not, have little hope of pursuing justice in the world’s newest and most
promising international judicial forum. The 1998 Rome Statute establishing
the ICC specifies that the court can only exercise jurisdiction over crimes
occurring after 1 July 2002 and, furthermore, can only hear cases occurring
on the territory of a state party, or crimes involving an accused who is a
national of a state party. Israel is not a signatory to the Rome Statute, and
Palestine is not yet a sovereign state.
The frustrations and ironies of these limitations became clear to
Palestinians following Israel’s 23 July 2003 assassination of Hamas leader
Salah Shehada in Gaza. Shehada was killed by a one-tonne bomb dropped
on an apartment block, an operation that took the lives of 15 civilians, many
of them children. Within days Palestinian officials and human rights activists
were claiming that this act constituted the first war crime committed since
the inauguration of the ICC three weeks earlier.14 Fervent demands that Israel
be brought before the new court multiplied, until legal experts weighed in
with a discouraging analysis: until a Palestinian state is recognised by the
international community, and signs the relevant instruments of international
law, Palestinians ‘cannot pursue justice independently’.15
Sadly, Palestinian leaders and quasi-state organisations, choosing political
expediency and continued access to international funding over legal
principles, have also contributed significantly to ensuring and prolonging
the legal exceptionalism that hinders Palestinians’ search for justice. In
addition to the poorly thought-out signing of the Oslo accords following
secret meetings in Norway, the Palestinian Authority sacrificed the legal high
ground and passed up another important opportunity to press Israel to
comply with IHL and a host of UN resolutions in 1999 a year before the
outbreak of the Al-Aqsa intifada. On 15 July 1999, after considerable
advocacy efforts by various human rights organisations, a meeting of 103 of
the 188 signatories to the 1949 Geneva Convention was convened in Geneva to
investigate Israeli violations of IHL and to formulate possible mechanisms to
enforce the Convention’s requirements. This meeting, which marked the first
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time that the signatories had ever gathered to implement the Convention’s
requirements, had the potential to be a watershed moment in the Palestinians’
utilisation of IHL in their search for justice. Shortly after the meeting began,
however, the Palestinian representatives asked for an adjournment in response
to a US-led (and, alas, Palestinian-backed) campaign to avoid quarrels with
the incoming Israeli government of Ehud Barak and thereby give more time
for the ‘peace process’ to get ‘back on track’.
Similarly, Palestinian leaders and spokespersons were very hesitant to
support a 2001 attempt to bring those guilty of the Sabra and Shatila
massacre, perhaps the most iconic expression of the grave violation of
Palestinians’ human rights, before a European Court under the principle of
universal jurisdiction. Clearly, the international community cannot be more
Palestinian than the Palestinians. This does not exclude, however, the key
role of innovative attempts by international human rights organisations
and activists working in close collaboration with Palestinians to preserve and
realise the rights due to them as human beings in the framework of IHL
and IHRL.

International law as a weapon of the weak?

Today, the Palestinian people lack effective courts of law and have no means of
defending and vindicating their rights as defined by international humanitarian
law and the Geneva Conventions. This absence of judicial recourse cannot
continue. The effort to end impunity will not cease.16

Working around, through and above, rather than against, the nation-state
system has provided tentative sparks of hope for the use of IHL to redress
violations of Palestinians’ human rights. Only one example will be considered
here given space limitations: the use of universal jurisdiction to prosecute
international crimes in national courts. Other important examples include the
2004 International Court of Justice Advisory Ruling on the legality of Israel’s
‘separation barrier’, the wall now being erected outside the 1967 demarcation
lines; and the use of the Alien Torts Claim Act (ATCA) in US courts.
As Liisa Malkki observed in the passage cited at the beginning of this
article: ‘The possibility of creative subversion of the national order is already
written into its classificatory processes themselves . . . People can categorise
back.’17 By using their interstitial location and liminal status in the current
political world order of sovereign nation-states, Palestinians have availed
themselves of, and helped to consolidate, mechanisms of international justice
that transcend the nation-state system and that are not based solely on
territorial jurisdiction. To cite the lyrics of a song by Leonard Cohen: ‘there is
a crack in everything; that’s how the light gets in’. Palestinians’ recent
courtroom experiences have exploited these ‘cracks’, and have thus thrown
light on the potentialities—as well as the deficiencies—of the current
international justice system.
Encoded in the Fourth Geneva Convention of 1949 and the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading
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Treatment or Punishment, universal jurisdiction is based on customary law

as well as on an international consensus, strengthened by the horrors of
World War II, that some crimes are so heinous that they threaten the entire
human race. The jurisdiction for prosecuting these crimes must thus be
universal, not simply territorial. The four Geneva Conventions clearly
provide for universal jurisdiction over war crimes. According to Article 49 of
the First Geneva Convention:18
Each High Contracting Party shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed, such
grave breaches, and shall bring such persons, regardless of their nationality,
before its own courts. It may also, if it prefers, and in accordance with the
provisions of its own legislation, hand such persons over for trial to another
High Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case.

Unlike most dimensions and facets of international law, the subjects of

universal jurisdiction are not necessarily states, but perpetrators of grave
abuses and their victims. Universal jurisdiction centres on the rights of states
to prosecute individuals, regardless of where they are located or what, if any,
citizenship they enjoy. Such prosecutions entail a normative ‘view from
nowhere’. Universal jurisdiction is an important, but until recently,
overlooked facet of IHL that can be a crucial tool in the international
campaign against impunity for war crimes, crimes against humanity and
genocide.
Using universal jurisdiction as the basis for pursuing international justice
in national courts is one of the few options for prosecuting those crimes
committed before the entry into force of the Rome Statute establishing the
International Criminal Court on 1 July 2002 which have not been addressed
by UN-authorised ad hoc tribunals, such as the international criminal
tribunals for Rwanda and the Former Yugoslavia. For stateless Palestinians
seeking redress for grave violations of their human rights, universal
jurisdiction is perhaps the best option for attaining justice.
The practice of universal jurisdiction can empower survivors of atrocities,
often among the most marginalised people in the world, to play an important
political role on a global stage. For some this represents a profoundly
threatening development. Of all the forms of extraterritorial jurisdiction,
Universal jurisdiction is the most controversial. It is rarely invoked because it
constitutes (as do refugees) an affront to the conceptual basis of the nation-
state system and poses an existential threat to states’ territorial authority and
ambitions.
Opponents of the application of universal jurisdiction in national courts
argue that such trials will not deter crimes, but will instead create an even
more dangerous and volatile international milieu by eroding the necessary
comity in relations between sovereign states. Some detractors of universal
jurisdiction have gone so far as to warn that these trials could dismantle the
Westphalian system of sovereign nation-states itself. Former US Secretary of
State Henry Kissinger, himself the subject of universal jurisdiction initiatives
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in Chile, has compared universal jurisdiction to a ‘witch hunt’ and warned

that it could quickly devolve into a ‘new Inquisition’.19
Proponents of universal jurisdiction, on the other hand, see it as an
indispensable tool for advancing global justice and halting atrocities. In
decreeing that authors of war crimes are the enemies of all humankind (hostes
humanis generis), universal jurisdiction attempts to remove any safe havens
for perpetrators by enabling citizens of one state to be tried for killing or
torturing citizens of a second state in the courts of a third state. If all states
were to honour the principle of universal jurisdiction by respecting and
enforcing the ideals encoded in the Geneva Conventions, a truly international
and universal framework of justice would begin to emerge.
Until very recently, universal jurisdiction existed more in theory than in
practice. In 1998, however, it made headlines when a Spanish court tried to
extradite Chilean General Augusto Pinochet from the UK to stand trial for
crimes against humanity in Spain. Earlier in the 1990s Belgium’s legislature
had voted to incorporate the principle of universal jurisdiction into the
Belgian criminal law code. Belgium’s progressive ‘anti-atrocity’ legislation
enabled Belgian courts to hear war crimes cases in which neither the victims
nor the perpetrators had any connection (nexus) with Belgium.
In so doing, Belgium enabled the subaltern to narrate—or at least to
testify. Such trials had the potential to transform war crimes survivors and
victims of atrocities into plaintiffs wielding considerable power to influence
the trajectory of international criminal prosecution by establishing pre-
cedents with potentially far-reaching effects on legal concepts and their
realisation through the media of ideas, attitudes, structures and behaviours.
In effect, Belgium’s universal jurisdiction law constituted a new and
potentially significant ‘weapon of the weak’.
Yet, as Foucault has noted: ‘Where there is power, there is resistance’.20
The newfound capacities that Belgium’s universal jurisdiction law afforded to
those who are usually on the receiving end of the world political and
economic order generated rapid and overwhelming resistance from the
aforementioned ‘hyper-sovereign’ states. As Nader notes: ‘When active
plaintiffs threaten civil action, there is predictably a power move to close
down access . . . The powerful react to challenge’.21 But that very reaction in
turn delineates and clarifies emerging forms of transnational power and
global structures of moral and legal accountability.
Those instances in which universal jurisdiction has been deployed, or
attempted to be deployed, provide rich diagnostics of the workings of the
global political and legal order beyond the nation-state system. The
realisation of universal jurisdiction reveals the interstices of a dynamic
global system, drawing our attention to new roles, structures and
ideologies flickering at the edges of the known legal and political
universe. Furthermore, representations of and contention over the shifting
boundaries of different forms of jurisdiction and power are a salient theme
of everyday discourse throughout much of the world, as current debates
over the World Trade Organization, global warming and labour migration
make clear.
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The Sabra and Shatila case in Belgium: a lesson in universal jurisdiction

The case lodged in Belgium on 18 June 2001 by 28 survivors of the 1982
Sabra and Shatila massacres charged Ariel Sharon, former Israeli defense
minister and the country’s prime minister, as well as other Israelis and
Lebanese, with war crimes, crimes against humanity and genocide related to
the massacres committed between 16 and 18 September 1982 in the Sabra and
Shatila refugee camps in Beirut. The central argument of the case hinged
upon Ariel Sharon’s command responsibility as General of the Israeli
Defense Forces (IDF), which was in full control of Beirut when the massacres
took place in the contiguous refugee camps of Sabra and Shatila. Although
the killing and disappearance of 1000 – 2000 unarmed Lebanese and
Palestinian civilians were carried out by Lebanese militia units affiliated
directly or indirectly with the Israeli-backed Christian Lebanese Forces (the
Phalange), the legal, military and decision-making responsibility ultimately
rested with Ariel Sharon under established and recognised principles of
international law.
On 12 February 2003, following two years of a veritable legal
rollercoaster of appeals and counter-appeals,22 the Belgian Supreme Court
(Cour de Cassation) found in favour of the Sabra and Shatila plaintiffs on
the clear strength and intent of the 1993 and 1999 anti-atrocity laws. The
massacre survivors had petitioned the Supreme Court to review and reverse
the 26 June 2002 Appeals Court ruling that the accused had to be present
on Belgian soil for an investigation and trial to go forward. And the
Supreme Court did just that, awing human rights supporters while shocking
the case’s detractors, who, arrogantly assuming that the Supreme Court
would find in favour of the more powerful party, had appeared in force in
the courtroom expecting to celebrate a victory for Sharon and the others
accused.
Scholars, activists, lawyers and judges who had followed the trajectory of
universal jurisdiction for the previous decade, not to mention thousands of
survivors of grave human rights abuses throughout the world, perceived the
12 February 2003 Belgian Supreme Court ruling as comparable in its
implications and reverberations to Spain’s earlier attempt to extradite
Pinochet. Another corner in the global campaign against impunity had
seemingly been turned. Another precedent appeared to be set in the living,
growing and tumultuous body of laws, court decisions and commentaries
that constitute the dynamic field of international criminal prosecution.
Four weeks after the Sabra and Shatila plaintiffs were vindicated by the
Supreme Court decision, however, reports of a new case, one even more
controversial than that lodged against Ariel Sharon and others, dominated
legal discussions in Brussels. On 18 March 2003 a case was brought with
great publicity against present and former high-level US government officials.
This time the accused included former president George HW Bush and
Colin Powell, who were named as the responsible parties in a US attack on
the al-Amiriyya shelter in Baghdad, where some 400 Iraqi civilians died
during the 1991 Gulf war.
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Within three months, US Secretary of State Donald Rumsfeld was

lecturing the Belgians that they had to water down, or completely revoke,
their admirable universal jurisdiction legislation (which had already under-
gone a legislative filtering earlier in 2003), or the USA would see to it that
NATO was relocated to Warsaw. In short order, the newly elected Belgian
government complied with Rumsfeld’s request, instantly rendering Belgium’s
universal jurisdiction law virtually non-universal, and the Sabra and Shatila
case null and void.
If nothing else, the attempt to realise universal jurisdiction in Belgium’s
courts briefly enabled victims of grave human rights violations, such as the
Sabra and Shatila survivors, to turn Thucydides’ ancient adage about the
calculus of war upside down: in war the strong may still do as they will, and
the weak may continue to suffer as they must, but the latter may eventually
see the former in court. Palestinian refugees’ attempts to deploy universal
jurisdiction to seek redress for a 20-year-old massacre constituted a highly
performative act, a creative judicial intervention that had the power to reveal
new legal possibilities, open up new political spaces, reposition subjects and
catalyse ideas and action across a truly global sociopolitical and legal field.
Universal jurisdiction cases seemed to herald a new venue for the exercise of
power—non-state based, non-military, collaborative, culturally plural and
decentralised—which in turn elicited dramatic forms of resistance from
powerful nation-states.
Indeed, the case lodged by the Sabra and Shatila survivors in Belgium
illuminated some disturbing aspects of the emerging post-9/11 world order.
The successful quashing of the Belgian Supreme Court’s landmark February
2003 ruling revealed that the global order was incomplete and fragmentary,
that transnational ideologies and organisations were less resilient than many
had thought, and that the Westphalian system of sovereign nation-states
itself was in danger of becoming a thing of the past—but not because of
universal jurisdiction’s threat to the comity of inter-state relations. US
sovereignty had trumped Belgian claims to sovereignty, not on the bases of
legal precedent, but rather on the basis of old-fashioned political strong-
arming and economic inducements.
Belgium’s inability to defend its progressive universal jurisdiction law in
the face of regressive US pressure also revealed the weakness of discourses
lauding transnational EU frameworks and postmodern conceptions of global
governance. As Michael Verhaeghe, one of the Belgian lawyers for the Sabra
and Shatila plaintiffs noted: ‘The grassroots of international and European
NGOs might seem solid—until a real and rough match is actually played on
their field! Then we see that the roots are not so deep and strong after all!’
The emergent world system illuminated by the trajectory of international
criminal prosecution in Belgium’s national courts is one in which markets,
capital, media and military are indeed global, but justice, accountability and
law are not. Pronounced US and Israeli resistance to the new forms of legal
and political power implicit in universal jurisdiction suggests that it is neither
national sovereignty (an inherently relational and plural concept based on a
system of interrelated nation-states), nor even the comity of inter-state
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discourse that the US administration wished to defend. Rather, US officials

were aiming to protect and preserve US hegemony, privilege, power and
interests by whatever means necessary.
The epiphany of 28 massacre survivors’ attempt to pursue international
justice in a national court is the revelation that we are all in danger of
inhabiting a world which, far from being characterised by postmodern,
transnational ideologies and flexible global structures of international
governance, instead bears a troubling resemblance to pre-modern imperial
modes of governance dominated by the ambitions and actions of a single,
untrammelled, expansionist power which claims it is above the law. Secretary
Rumsfeld showed no hesitation in manipulating the legislative and judicial
processes of a supposedly sovereign nation state—Belgium—in order to
protect and advance narrowly defined US interests over and above universal
conceptions of rights and justice. That act spoke volumes about the future
trajectory of the nation-state system no less than do the limits of emerging
EU administrative and legal frameworks.
Similarly, the US administration’s brash demands, coercive actions and
deal-making pressuring other states to sign non-extradition treaties shielding
any and all US officials from the long arm of international law weakens the
newly established ICC. Known as ‘Article 98 Agreements’, these treaties will
guarantee the continued impunity of war criminals and serial human rights
violators throughout the world.
Finally, the repercussions of the Sabra and Shatila plaintiffs’ attempt to
effect universal jurisdiction in a national court also revealed that universal
principles do not exist a priori, as Enlightenment thinkers might like to have
us to believe. Rather, they become universal, in the sense of being shared in
common and capable of animating beliefs and values and mobilising co-
ordinated action in multiple sites, only through socially situated processes of
solidarity and resistance. Rights only have reality in and through the
mutuality of relationships, struggles, debates, dialogues and experiences that
link and interrelate people of different nationalities, positions, genders,
classes and ideologies across diverse social fields.
Crucial to these processes is the engendering of spaces and moments of
empathy between people positioned in vastly different social and political
structures and life-worlds. Such attempts at justice require cracking open the
implicit interstices of existing judicial structures by enlarging legal and
sociopolitical spaces that have little to do with territorial sovereignty or the
nation-state system. Spaces that Palestinian refugees have begun to discern as
potential escape routes from the hidden and uncomfortable political and legal
holes of refugee camps, tents and prisons that they have known for six decades.

Notes
1 Liisa Malkki, Purity and Exile: Violence, Memory and National Cosmology among Hutu Refugees in
Tanzania, Chicago, IL: University of Chicago Press, 1995, pp 2 – 8.
2 Laura Nader, The Life of the Law, Berkeley, CA: University of California Press, 2002.
3 A survivor of the Sabra and Shatila massacre, one of the plaintiffs in a case filed under Belgium’s
universal jurisdiction law in 2001.

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4 It is difficult to establish with legal certainty at this point the actual status of the Gaza Strip following
the unilateral withdrawal of Israeli troops and illegal settlements in the summer of 2005. Although
Israel took this step ‘without a partner’, and insists it is no longer occupying Gaza, Israel (and Egypt)
remain in control of Gaza’s borders and airspace. Israeli Air Force attacks on the Gaza Strip have not
ended since the Israeli pullout. The January 2006 Palestinian elections may clarify who has political
legitimacy within Gaza (at present a matter of uncertainty and doubt), but the elections will not
elucidate how much sovereignty Gazans actually enjoy.
5 Jean L Cohen, ‘Whose sovereignty? Empire versus international law’, Ethics and International Affairs,
18 (3), 2004, pp 1 – 24.
6 International Humanitarian Law (IHL) refers to a body of laws and international conventions intended
to provide clear codes of conduct in times of armed conflict. IHL criminalises the worst offences known
to human experience. The laws define and attempt to prevent war crimes, crimes against humanity and
genocide. Central to IHL are the Hague Regulations on Land Warfare of 1907, which cover means and
methods of warfare; the Genocide Convention of 1948 and the Geneva Conventions of 1949 and the
two additional protocols of 1977. Collectively these instruments stipulate the differences between legal
and illegal conduct in times of military hostilities and military occupation. The Genocide Convention
of 1948 defines genocide as certain acts ‘committed with intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group as such’. The Rome Statutes of the International Criminal
Court, adopted in 1998, represent a further refinement and clarification of IHL. Of additional
importance is the Nuremberg jurisprudence, which established the law on crimes against humanity. At
the heart of IHL is the stipulation that civilians and civilian infrastructure are not to be directly and
intentionally harmed in times of war or at times of armed conflict.
7 Although most objective observers view Israel as a ‘belligerent’ occupier in the West Bank (and
formerly in the Gaza Strip), Israel insists that it is not occupying but only ‘administering’ territories
that did not enjoy sovereignty before 1967. Thus, Israeli legal scholars, diplomats and politicians have
long argued that the Fourth Geneva Convention is not applicable to its actions in the West Bank or
Gaza Strip.
8 See Joel Beinin, ‘The demise of the Oslo process’, Press Information Note No 1, 26 March 1999, at
http://www.merip.org/mero/mero032699.html; Kathleen Cavanaugh, ‘The cost of peace: assessing
the Palestinian – Israeli accords’, Middle East Report, 211, 1999, pp 10 – 12; and Sara Roy,
‘De-development revisited: Palestinian economy and society since Oslo’, Journal of Palestine Studies,
64, 1999, pp 64 – 82.
9 The multidimensional Israeli – Palestinian conflict is transnational in that it entails three separate sets
of unresolved conflicts: that between Israel and the Palestinians in the West Bank and Gaza, which has
now assumed a violent, militarised form; conflicts between Israel and its own Palestinian citizens,
which usually assumes a legal/political form, but which turned violent in October 2000; and conflicts
between Israel and millions of Palestinian refugees, which may best be described as an existential rather
than a political conflict, and which may well be the most threatening to Israelis, despite its current lack
of a militarised dimension.
10 Lisa Hajjar, ‘From Nuremberg to Guantánamo: international law and American power politics’,
Middle East Report, 229, 2003, at www.merip.org.
11 Lord Johan Steyn, 27th FA Mann Lecture, London, 25 November 2003.
12 Kenneth Roth, ‘Introduction’, in Human Rights Watch, World Report, New York: Human Rights
Watch, 2006, at www.hrw.org.
13 ‘Palestinian refugee rights: Part one—failure under international law’, presentation delivered by Susan
Akram at the Palestine Center in Washington, DC, 28 July 2000, at http://www.palestinecenter.org/
cpap/pubs/20000728ib.html.
14 Aluf Benn, Amira Hass & Ruth Sinai, ‘IDF general escapes arrest by London police’s anti-terrorist
unit’, 12 September 2005, at http://www.haaretz.com/hasen/pages/shArt.jhtml?itemNo¼623525.
15 Comment by Avril MacDonald on the website of Amsterdam’s Asser Institute, 26 July 2002.
16 Luc Walleyn, one of the three lawyers representing the Sabra and Shatila plaintiffs in Brussels.
17 Malkki, Purity and Exile.
18 The Second, Third, and Fourth Conventions contain a similar rule in Articles 50, 129 and 149,
respectively.
19 ‘The pitfalls of universal jurisdiction: risking judicial tyranny’, Foreign Affairs, July/August 2001, at
http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm.
20 Michel Foucault, History of Sexuality, 1, 1976, p 95.
21 Nader, 2002, Ibid., p 15.
22 For more details, see www.indictsharon.net.

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