Book Talk: The UN and the Question of Palestine

Ardi Imseis Discusses "Rule by Law" and the Structure of International Legal Subalternity

By: Fatima Aamir (3L)Credit: Cambridge Press

This article reflects the views of the author alone, not the International Human Rights Program, nor the Rights Review Editorial Board members.


On January 23, Queens Law Professor Ardi Imseis visited UofT Law to introduce his new book, The UN and the Question of Palestine. The event was organized by Professor Mohammed Fadel, who introduces the event by reminding audiences that Palestinian human rights and freedom are not recent concerns of Faculty or students at UofT's Faculty of Law. 2020-2021 saw the IHRP scandal at the University, where the Censure UofT movement called for donor transparency and the protection of academic freedom, following the Faculty's rescission of a job offer to international human rights scholar Valentina Azarova due to donor concerns about her pro-Palestinian scholarship."The Censure UofT movement generated solidarity among faculty across different divisions in the university," Fadel recalls. Examples include Faculty Professors Anver M. Emon and David Schneiderman's article "The Storm Over Academic Freedom, Collegial Governance, and International Human Rights at UofT's Faculty of Law," and Fadel's own new class on the conflict, co-taught with Professor Ariel Katz at the law school last fall. "The goal was to normalize discourse about Palestine [at the law school] and to institutionalize it as an academic subject." 

The UN and the Question of Palestine

Imseis begins his talk by sharing that 80% of people in Gaza are not Gazans but were displaced (or are descendents of those displaced) from the 1948 nakba, which saw 700,000 Palestinians turn into refugees overnight. From 2002 to 2014, Imseis was Legal Counsel and Senior Policy Advisor to the UN Relief and Works Agency for Palestine Refugees in the Near East (UNWRA)—which was recently defunded by at least 9 major donors, including Canada, in what critics have called "collective punishment" to Gazans. It was during Imseis' time at the UN that the limits of the organization in securing the human rights and freedom of Palestinians became bitterly clear to him. 

Imseis says his book is the first dedicated to the UN's management of Palestine that offers critical comment. It challenges the "received wisdom" that the UN is the standard bearer of international legal order. Part of Imseis' scholarly intervention is his discussion of "International Legal Subalternity," which he defines as "the condition of those continually subjected to international law, but for whom international law's promises are perpetually kept out of reach." Imseis observes critically that the UN's management of Palestine illustrates the clash between "rule of law" and "rule by law." He defines the former as "law based on [the] universal application of norms, without regard to power or the station of subjects." The latter: "the cynical use, abuse, and selective application of international legal norms, by hegemonic actors, perpetuating inequity between them and their subaltern." Imseis is clear that international legal subalternity and rule by law do not simply illustrate the plight of the Palestinians. "You can see this in other countries," he observes, "with the circumstances of refugees, internally displaced peoples, and Indigenous peoples." 

While Imseis is critical of the UN, he points out that Palestine's legal subalternity did not begin there. It began in the interwar period with the League of Nations, where British imperialism began undermining the rights of the Arab peoples. Imseis points to the 1917 Balfour Declaration, League of Nations Covenant, and the Palestine Mandate of 1922-1947 as critical and oft-overlooked moments that furthered the international legal disenfranchisement of Palestinians. For Lord Balfour, for example, the existence of Native Palestinians was unimportant. Privately, he declared, "In the case of Palestine, we deliberately and rightly decline to accept the principle of self-determination." Imseis adds that Zionism is a self-described European settler movement imposed on Palestinians: the founder of Zionism, Theodor Herzl, himself made it clear that "Zionism is a "colonial idea," and that the Jewish national home in Palestine will "form a portion of the rampart of Europe against Asia, an outpost of civilization against barbarism."

Despite the promise of a new global order based on the rule of law, Imseis illustrates that the UN remained true to these troubling legal frameworks it had inherited. Resolution 181, on 29 November 1947, saw the partition of Palestine. This Resolution reflected further contempt for the principle of self-determination and consent. For example, Imseis shares that Jose Garcia Granados, Guatemala's UN Representative who was one of the members of the UN Special Committee on Palestine (UNSCOP), stated on 10 October 1947 that "Palestine was no more Arab than certain Spanish countries of Latin America were Indian. The Jews had made a pleasant and healthy country out of a land in which a sparse and rachitic population had merely vegetated. It was incomprehensible that the Arabs should adduce their numerical superiority as an argument [for self-determination] ... an ignorant majority should not be allowed to impose its will." Such statements are unsettling. They echo the terra nullius justification that European settlers used to (often violently) impose their rule on First Nations communities throughout Turtle Island, in flagrant disregard for their self-determination and existing governance. 

Imseis discusses how the Partition plan allocated the Jewish state 57% of the territory, including most of the fertile land. The economic viability of the proposed Palestinian state was found to be low, and Imseis notes that in response, Palestinians were expected to go to the Bretton Woods institutions and beg for aid. This entrenched a trend of pushing Palestinians towards developmental solutions to deal with festering legal and political problems. 

For example, Imseis discusses UNWRA, where he used to work. UNWRA is an entirely distinct institution from the United Nations High Commissioner for Refugees (UNHCR). The UNHCR has 3 preferred "durable solutions" for refugees: voluntary repatriation (the preferred scenario), local integration into the country of immediate refuge, and resettlement into a third country. UNRWA emerged following the collapse of the UN Conciliation Commission for Palestine, which lasted just three years, from 1949 to 1952. It failed because Israel never agreed to the repatriation of Palestinian refugees, and Arab states never allowed for long-term resettlement. "[The Commission] simply stopped working on a durable solution," says Imseis. 

The Commission's successor, UNRWA, is both a relief and work agency. It seeks not only to provide Palestinians with humanitarian assistance but also to integrate them into the economic life of the Near East–what Imseis considers a euphemism for resettling them following their ethnic cleansing. The idea, Imseis argues, is to put Palestinians to work where they are so they have no desire to return to the homes they were forcibly displaced from. 

The UNWRA originated as a temporary agency. It has lasted for over 75 years. 

At the time of Imseis' event, the ICJ hearing between South Africa and Israel on whether Israel was committing genocide in Gaza was ongoing. Despite audience pessimism regarding any meaningful outcome for the Palestinians, Imseis notes that a positive ICJ decision means 3rd party obligations on countries like Canada to do what they can to halt genocide. He adds that while there has been close attention to documenting Israel's illegal settlements, deportations, torture, and the economic impact of its occupation on Palestinians, international human rights organizations do not go so far as to challenge the legality of the regime giving rise to these violations. "Is Israel's occupation lawful [in the first place]?" Imseis poses to the audience. This question is also being considered at the ICJ–hearings Canada has pulled out of at the last minute. 

Professor Kamari Clarke's Critical Response

The book talk concluded with comments from Professor Kamari Clarke, Distinguished Professor at the Centre for Criminology and Sociolegal Studies, and the Centre for Diaspora and Transnational Studies at UofT. 

First, Clarke praises Imseis' "profound contribution to legal theory": his discussion of the "rule by law" in the international realm, which produces conditions of subalternity. She places Imseis' approach in line with other Third World approaches to international law, where scholars problematize Eurocentricity, which "carries civilizing rationales into modern juridical settings." For the Third World, their sovereignty is circumscribed and conditional, Clarke emphasizes, as Imseis has illustrated in his discussion. 

However, Clarke went on to challenge Imseis by interrogating, "why are we ending with the UN?" For a book that painstakingly delineates how international law has been far from a domain of liberation for Palestinians, why conclude by investing faith in those very institutions? Clarke points out that for Palestinians, the problem is a fundamentally political one, not just legal. "Political solutions are needed alongside the space of law as a domain of possibility," Clarke argues, "and TWAIL scholarship (Third World Approaches to International Law) is valuable here." Clarke draws our attention to the affective nature of law. "What can law do for social mobilization; how is law instrumentalized for particular ends?" she asks, "These are political problems." 

Clarke and Imseis both recognize that international law is shaped fundamentally by politics. In the audience Q&A, for example, Imseis notes that subalternity is a permanent feature of the international order; it is constantly shifting. "There are always new subalterns and new hegemons," he explains. "There's always, in law, power: who drafts the law, when do they do it, for whom, and how?"