Transnational lawyering and legal resistance in national courts: Palestinian cases before the Israeli Supreme Court.

• Author: Jabareen, Hassan

This Note explores the strategies of transnational cause lawyers working within national courts. It begins by documenting the emerging use of international norms and arguments for the purpose of mobilizing local communities and affecting domestic laws. The use of transnational law today broadens the legal imagination of lawyers beyond their national borders, constraints, and traditional audiences. Redefining the boundaries of a legal victory, transnational law provides lawyers with tools to continue bringing legal challenges while avoiding the dilemmas of legitimating oppressive legal structures.

This Note presents a case study of transnational lawyering, in the context of challenging ongoing military operations through the invocation of international humanitarian law. In 2002, lawyers from Adalah--The Legal Center for Arab Minority Rights in Israel--filed an unprecedented series of petitions before the Supreme Court of Israel during an unfolding military operation in the West Bank. They did this despite knowing that the Supreme Court would not intervene in the military's operational activities. The article chronicles the choices made by the Adalah lawyers who sought to use the petitions as a vehicle to create a legal and historical record of the events. Bypassing domestic law, the petitions were anchored in international humanitarian law principles. They spurred official state, military, and judicial responses to the allegations while the hostilities were still ongoing, a crucial record amidst an enforced media blackout. The case illustrates how transnational lawyering succeeded in mobilizing international bodies through domestic courts.

1. INTRODUCTION

   The legal literature on lawyering for social and political change focuses primarily on the work of lawyers within the framework of a country's sovereign borders. The law, courts, and communities these lawyers address and wish to mobilize are all local. According to this literature, legal success is measured by the results achieved in decisions delivered by national courts.

   The first part of this Note argues that the use of transnational law today broadens the legal imagination of lawyers beyond the borders of national sovereignty. Transnational law influences the legal strategies of lawyers: it gives additional meaning to what constitutes legal success; it affects our ability to avoid the problem of the legitimation of norms in oppressive legal systems; and it offers possibilities of legal resistance within the law and through it.

   The second part of this Note presents a case study on the emerging use of transnational lawyering in national courts. It discusses a series of four petitions brought before the Supreme Court of Israel by Adalah--The Legal Center for Arab Minority Rights in Israel. These cases highlight the strategies used by transnational lawyers given the unfavorable situation in the national court. The section relies heavily on the language of petitions, the responses of the Attorney General's office, and the decisions of the Supreme Court in describing these events.

   In 2002, Adalah attorneys were confronted with formulating a response to an Israeli military assault on the Occupied Palestinian Territory (OPT). Specifically, for ten days in April 2002, the Israeli Army conducted a devastating military operation in the Jenin refugee camp in the West Bank. Despite recognizing that the Israeli Supreme Court would not intervene in the military's operational activities and that the petitions submitted would be rejected, Adalah nevertheless decided, for the first time, to initiate emergency litigation during and against the ongoing military activity.

   Through this litigation, Adalah attempted to generate legal resistance in the domestic courts. In order to do this, the petitions addressed the Supreme Court and sought to widen the public debate in Israel by inserting international law and international public opinion, as obtained through wide media outreach, into the discussion. The legal proceedings were used not only to challenge the gross violations of human rights against Palestinian civilians in the OPT, but also to create a legal and historical record through the petitions, state responses, and court decisions concerning these practices, and to mobilize international actors such as the United Nations.

2. HUMAN RIGHTS LAW AND THE RISE OF TRANSNATIONAL LAWYERING

   International human rights norms have led to a change in the status and traditional meaning of "national sovereignty." While classic international law defined national sovereignty as mutual respect between countries and non-intervention in their internal affairs, international human rights law emphasizes the obligations of states to protect and promote the rights of citizens and residents. Antonio Cassese argues that human rights law competes with, or even contradicts, the traditional meaning of sovereignty. (1) Seyla Benhabib goes even further, contending that we are now in an era of cosmopolitan norms that undermine the era of territorial sovereignty, which regarded the state as the supreme authority for exercising judicial power over anyone living within its jurisdiction. (2) The rising power of human rights discourse, however, does not necessarily correlate with a decline in human rights abuses. In reference to the fall of the Berlin Wall, Brenda Cossman presciently wrote in 1991 that "[a]s the Wall is dismantled in Europe, new walls may only be going up elsewhere." (3)

   Nonetheless, international human rights legal discourse has gained momentum and strength in recent years in places where it had previously been neglected, notably in the United States. In light of the flagrant human rights violations committed by the Bush administration following the events of September 11, 2001, civil rights and human rights activists at both the domestic and the international level have been increasingly engaged with international human rights principles. (4) As Joseph Raz observed, "[i]t is a good time for human rights in that claims of such rights are used more widely in the conduct of world affairs than before." (5)

   Yet how does this rise of international human rights discourse, championed by scholars and a small but growing community of international jurists, incorporate itself into national courts that traditionally rely almost exclusively on domestic law?

   In 1956, Philip Jessup in his classic book Transnational Law called upon lawyers to use not only classic international law but also transnational law in courts. Jessup defined "transnational law" as "all law which regulates actions or events that transcend national frontiers," including "both public and private international law" and "other rules which do not wholly fit into such standard categories. (6) Forty-five years after this call, United States Supreme Court Justice Sandra Day O'Connor noted that American courts were hearing an increasing number of cases involving comparative law and international law. She stressed that this was "because international law is no longer confined in relevance to a few treaties and business agreements. Rather, it has taken on the character of transnational law--what Philip Jessup has defined...." (7)

   Pursuant to Jessup's definition, transnational law is not purely international law, regional law, comparative law, global legal literature, nor national law. Rather, it is a combination of all of those things. (8) Major developments in the area of transnational law over the last two decades--including state parties' ratification of United Nations international human rights conventions, the issuance of United Nations treaty-body concluding observations and case law, the establishment and growing jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and the International Criminal Court, and the wide-ranging decisions of regional courts such as the European Court of Human Rights and the Inter-American Court of Human Rights--all affect the work of human rights lawyers. Transnational law expands the imagination and professional consciousness of these lawyers. They are no longer only local attorneys, but part of a wider, global community. Transnational lawyers employ comparative law, international law, and regional law in order to protect and defend against violations of human rights. They do this in the framework of their professional work in the national courts and in various United Nations fora, by building international coalitions, exchanging legal information, and disseminating this information through local and international media.

   It is no coincidence that the leading organization in the United States in the field of civil and human rights, the American Civil Liberties Union (A.C.L.U.), which for decades worked only locally and nationally, recently initiated an international advocacy project. (9) The lawyers working within this project appear before and report to United Nations committees in Geneva about human rights abuses by the United States military at Guantanamo Bay, Cuba, and in Iraq, and also employ a comparative and international law approach in United States courts. (10)

   In other examples, British and Turkish lawyers have compelled the government of Turkey to appear before and defend a ruling of the Turkish national court before the European Court of Human Rights. Lawyers working with Amnesty International have submitted an extradition request against Augusto Pinochet in London for crimes he committed as President of Chile. Belgian and Palestinian lawyers have filed a lawsuit in Belgium against former Prime Minister of Israel Ariel Sharon for war crimes committed against Palestinians living in the Sabra and Shatila refugee camp in Lebanon in 1982.

   United Nations institutions boosted the standing of transnational lawyers when they recognized the importance of their work with nongovernmental human rights organizations. These organizations provide reports...