Kemmerer, Alexandra

Peters, Anne

Kemmerer, A.

Peters, A.

MPG.PuRe

From 'Assigned Residence' to 'Zone': Introduction to the Book Review Symposium on The ABC of the OPT.

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From “Assigned Residence” to “Zone”Introduction to the Book Review Symposium on TheABC of the OPTAlexandra Kemmerer, Anne Peters 2019-07-15T13:00:13Israel’soccupation or “control” (as the book prefers to call it) of Palestinian Territory thatbegan with six days in June 1967, presents a depressing and tragic political andmoral conundrum. For the international lawyer, it is also a legal laboratory of globalrelevance. “The Israeli occupation of Palestine embodies a fateful and troublingparadox regarding international law that we must acknowledge and think ourway through”, writes Michael Lynk, the United Nations Special Rapporteur forthe situation of human rights in the Palestinian Territory occupied since 1967, inhis contribution to this symposium. A paradox, because the legal texts producedaround it have on the one hand contributed to the progressive development ofinternational law and have shaped key principles ranging from self-determination tothe non-recognition of unlawful territorial acquisitions, but have on the other handundermined international law because the actors involved in the management of theconflict have “consistently marginalized the promise and power of the rule of law as apolitical and diplomatic touchstone”, writes Lynk.For the authors of the ABC, what matters most is that – far from being a spaceof lawlessness – , the Israeli occupation is “filled to the brim with legalism” (ABC,- 1 -at p 21). The control of the Palestinian territories is probably “the most legalizedsuch regime in world history” (ABC, at p. 2). It is therefore a “laboratory”, and “[a]careful scrutiny of the experiments carried out in Israel’s legal laboratory may wellgenerate lessons that are relevant to other situations, and indeed to the course ofthe development of international law itself” (ABC, p. 5).The BookIsrael’s half-a-century long rule over the West Bank and Gaza Strip has been thesubject of extensive academic literature, also in international law. Yet, there hadbeen no comprehensive, theoretically informed, and empirically based academicstudy of the role of various legal mechanisms, norms, and concepts in shaping,legitimizing, and responding to the Israeli control regime. The ABC of the OPT. ALegal Lexicon of the Israeli Control over the Occupied Palestinian Territory, the mosttimely and award-winning new book by Orna Ben-Naftali, Michael Sfard and HediViterbo (Cambridge University Press 2018) fills this gap and offers a comprehensiveand yet detailed study of law’s role in constructing and maintaining this protractedand highly institutionalized regime. Through the format of an A-Z legal lexicon, thebook critically reflects on, challenges, and redefines the language, knowledge, andpractices surrounding the Israeli control regime.The book is structured in a lexicon format with 26 alphabetically ordered entries– only one for each letter of the alphabet. The choice of words selected forcommentary is subversive. The gamut ranges from familiar legal terms such as“combatant”, “proportionality”, and “war crimes” to unsettling and disturbing onessuch as “house demolition”, “quality of life: Putting the Gazans on diet”, and “X-rays:surveillance and profiling”.As the authors explain in their introduction, while the title of their book invokes thecommonly used term “OPT” (short for “The Occupied Palestinian Territory”), widelyused in reference to the West Bank and Gaza Strip under Israel’s control, the book,in general, avoids reducing Israel’s rule over the West Bank and Gaza Strip to“occupation” and oscillates between the concepts “occupation”, “control”, and “rule”,depending on the context under examination and the chosen analytical approach.The ABC is first of all committed, engaged legal scholarship in its best sense. Ittakes the law of occupation seriously, treating it as authoritative, and criticizing it withlegal, even legalist arguments, so to speak from “inside the legal universe”. But theABC also espouses an external perspective by showing how the law of occupationis an epiphenomenon to power, both the product of relationships of domination andthe precondition for sustaining them. The combination of both perspectives means,as Orna Ben Naftali writes in the introduction to the ABC, to pursue the “perhapsimpossible yet imperative ideal of simultaneously conserving and destroying thelaw” (ABC, p. 21).The ABC is a true work of critical legal studies to the extent that at its “heart” – asthe authors write – is the analysis of “the role of law in structuring and sustainingthe regime” (ABC, at p. 4). The second and related methodological feature is the“narrative” approach building on Robert Cover’s work on nomos. All entries seek- 2 -to shed light on the narratives which locate the legal institutions and give themmeaning.The combination of an ingenious choice of keywords, solid legal technicalcraftsmanship, deep knowledge of the law as it stands, the critical spirit, andthe embedding in narratives make the book a brilliant piece of scholarship.Unsurprisingly therefore, The ABC of the OPT has won much praise. It has beenselected for a honorable mention in the category “Certificate of Merit in a specializedarea of international law“ (2019) by the American Society of International Law’s BookAwards Committee and has also been included in the American Library Association’sOutstanding Academic Titles for 2018.The Book Launch in BerlinIn November 2018, the Max Planck Institute for Comparative Public Law andInternational Law ‘s Berlin Office and Recht im Kontext (Humboldt-Universität zuBerlin) hosted a Book Launch Conversation on The ABC of the OPT with MichaelLynk, Orna Ben Naftali, Charles Shamas, Yuval Shany and Hedi Viterbo. Thissymposium takes up a number of the questions and challenges that were discussedon that winter night in Berlin.Why Berlin? That night, our panelist Charles Shamas (who took a rather sober stockof the role of international law in the conflict) asked the very direct question thatmight have been also on other participants’ minds.It is Berlin where we currently witness a vibrant and wonderful revival of Jewishcultural life in Germany, with ever more Israelis moving to the city, among themmany academics and intellectuals who have made the city their temporary home.And it is, of course, also Berlin where the impact and lasting legacy of the “negativesymbiosis“ that both unites and divides Germans and Jews, a term first used byHannah Arendt in a 1946 letter to Karl Jaspers, later taken up by Gershom Scholem,and by Dan Dinerin his lead article in the first issue of the journal Babylon (1986), isever present and can be intensely felt. As the historian Diner put it: “Since Auschwitz—what a sad twist—we can indeed speak of a ‘German-Jewish symbiosis’—admittedly a negative one: for both Germans and Jews, the aftermath of massdestruction has become the starting point for their respective self-conception; a kindof communality of opposites. For both Germans and Jews have been brought into anew relationship with each other through this event.”With the renaissance of Jewish life in Germany in recent years, and generationalshifts and transformations, this assessment might no longer be entirely true, as KatjaBehrens has argued already in 2000. But the Holocaust was indeed a rupture incivilisation, a Zivilisationsbruch (Dan Diner) that ties us, as German internationallaw scholars, in particular ways to the Israeli-Palestine conflict. And it prompts aresponsibility to stand up against rising antisemitism as well as to cultivate andprotect spaces for free and refined academic and political critique and discourse.The Epistemic Traditions and Entanglements- 3 -Although the lexicon (especially one as the ABC on the OPC, which cunninglychooses only one single word per letter) is not exactly the same genre as the morehandbook-like and more complete encyclopedia, we would like to mention, as ahistorical footnote, that the outstanding Jewish encyclopedia of the interwar period,the German-language Encyclopaedia Judaica, was published in Berlin from 1928–1934. Planned to appear in 15 volumes, it remained incomplete (EncyclopaediaJudaica. Das Judentum in Geschichte und Gegenwart, 10 vols. [A–Lyra], Eshkol,Berlin 1928–1934; in Hebrew: Entsiklopedyah yisra’elit, 2 vols., Berlin/Jerusalem1929–1932). Inspired by the groundbreaking encyclopedic projects of the 18thand19thcentury, the great modern Jewish encyclopedias were – as Arndt Engelhardthas shown – important producers and repositories of knowledge, and at the sametime instruments to foster collective self-understanding in times of crisis andtransformation.The ABC of the OPT, it should also be noted, has partly been written during OrnaBen Naftali’s research visit at the Institute in Heidelberg – where the Max PlanckEncyclopedia of Public International Law seeks to fulfil similar functions.In earlier days of German (and French) legal scholarship, these functions werefulfilled by the many legal encyclopaediae of the 18th and 19th century, written andpublished in times of ever increasing legal fragmentations. This was an era in which,as Rainer Maria Kiesow writes in his lexicon-format Frankfurt habilitation thesisDas Alphabet des Rechts, completed at the Max Planck Institute for EuropeanLegal History, almost every German law student had to attend a compulsory lecture“Juristische Enzyklopädie”.To us, The ABC of the OPT is therefore also an inspiration to revisit, rediscover andrevive such traditional, sometimes long-forgotten formats, and to explore new formsof legal writing and teaching.The Blog SymposiumOn Verfassungsblog and Völkerrechtsblog, we open the symposium today witha contribution by Michael Lynk, Professor of Law at Western University, London,Ontario, and the United Nations Special Rapporteur for the situation of human rightsin the Palestinian Territory occupied since 1967. Lynk deplores a marginalization of“the promise and power of the rule of law as a political and diplomatic touchstonewhen constructing the negotiation principles for the Oslo peace process” andstrongly encourages a courageous re-engagement with international law. “This bookreminds us that legal and political exceptionalism is an anathema to a secure andcooperative global society”, he stresses.Yael Berda, Assistant Professor in the Department of Sociology and Anthropology atthe Hebrew University of Jerusalem, argues in her contribution that “the format of thelexicon revives the colonial and imperial phantoms that have created internationallaw“ and demonstrates how the use of the lexicon cuts through „the colonial politicalgrammar of the occupation“, taking a closer look on two entries, the ones on “nomos”and on “military courts”.- 4 -Yuval Shany, Hersch Lauterpacht Chair in Public International Law at the HebrewUniversity in Jerusalem, observes that “[t]he book seems to downplay the fact thatIsraeli politicians, lawyers and judges have not adopted a uniform approach towardsthe laws of belligerent occupation. To the contrary, the laws of belligerent occupationremain a battleground for pursuing competing legal and political conceptions.”Nadija Samour, a practising international criminal lawyer based in Berlin, finds in thevolume “straight-forward analyses of Israeli policies in Palestine“. Yet, she criticallystates that “the most urgent task remains unaddressed: to provide an adequate legalframework that moves beyond international humanitarian law – and perhaps one thatfocuses on ending the occupation“.A rejoinder by the authors, Orna Ben-Naftali, Michael Sfard, and Hedi Viterbo, shallconclude the symposium. Alexandra Kemmerer is Senior Research Fellow and Academic Coordinator at theMax Planck Institute for Comparative Public Law and International Law, and Head ofthe Institute’s Berlin Office.Anne Peters is Director at the Max Planck Institute for Comparative Public Law andInternational Law in Heidelberg (Germany),  and a professor at the universities ofHeidelberg, Freie Universität Berlin, Basel (Switzerland), and William C. Cook GlobalLaw professor at the University of Michigan. Cite as: Alexandra Kemmerer & Anne Peters, “From ‘Assigned Residence’to ‘Zone’: Introduction to the Book Review Symposium on The ABC of theOPT”,  Völkerrechtsblog, 15 July 2019.- 5 -

From "Assigned Residence" to "Zone": Introduction to the Book Review Symposium on The ABC of the OPT

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From 'Assigned Residence' to 'Zone': Introduction to the Book Review Symposium on The ABC of the OPT

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