The Law Is the Law, Sometimes: Interdisciplinary and Transnational Approaches to Legal Studies in and on the Middle East
Panel VII-11, 2023 Annual Meeting
On Saturday, November 4 at 8:30 am
The study of law in the Middle East has a long, illustrious, and varied genealogy, one that is to a large extent anchored in the fields of history, anthropology, political science, and religious studies. This panel will explore the study of law within Middle East Studies from different disciplines and locations, focusing on what centering the transnational Middle East brings to legal studies and theory. Drawn from different fields in the humanities and social sciences and representing different methodological approaches, panelists will present new work on international law, humanitarian and human rights law, and criminal and family law. Drawing on rich ethnography among lawyers who defended detainees in Guantanamo Bay and have challenged the United States’ attempt to create a zone of exception, the panel will examine whether accountability for gross crimes is aspirational or impossible. Similarly, the panel will examine another site of gross crimes and accountability in Palestine to explore the seeming contradiction between the proliferation of law regarding the Question of Palestine and the lack of legal regulation of Israel’s occupation. In doing so, this study will also shed light on what this contradiction reveals about the relationship between law and power. Pivoting from the plane of international to legal regimes in Turkey and Lebanon, the panel will offer insight as to what these sites of inquiry reveal about method and law. By placing recent upheavals in Turkey in the context of a long legacy of constitutional reform, the panel will highlight the counterintuitive role of the law on constitutionalism, liberalism, secularism, sovereignty, and political violence. Finally, in a close reading of a case heard at the civil personal status court in Lebanon, the panel will provide insight on the entwinements of medical expertise, civil registration law, and the colonial, postcolonial, and transnational regulation of gender. In so doing, this discussion will also consider the epistemological implications of different methodological approaches to the same research material. Together, the panel will highlight both the value of interdisciplinary approaches to the study of law in the Middle East as well as how such study shapes transnational legal methods and theory.
Dr. Lisa Hajjar
Dr. Asli Bali
-- Organizer, Chair
Dr. Maya Mikdashi
-- Organizer, Presenter
Ms. Noura Erakat
In 1991, one year after the end of the Lebanese Civil War, a woman petitioned the state to correct her sex in the civil registry. The petitioner had lived the entirety of the war in Lebanon, and she underwent gender reassignment surgery in Beirut six months after its end. By the time of her petition, she was sixty-two years old, had been married twice, and had parented children. Her life enters the historical and anthropological record of gender, sexuality, sovereignty, and legal practice through this court case. The case was heard by the civil personal status court in Beirut and by a judge who has since had a long and illustrious career in the Lebanese judiciary, and she and many of the lawyers and medical expert witnesses listed in the decision are still practicing. The decision itself relies heavily on French Cassation Court jurisprudence on “the family” at that time, jurisprudence that only changed in the Fall of 2022. In its summary of events, one can read an alternative history of the state and of sexuality in Lebanon and transnationally, beginning in the French Mandate era.
This paper will read the court case ethnographically, and outline a methodological approach centered on multiplicity and unknowability as critical to feminist theory, history and anthropology. What histories of Lebanon, war, sexuality, gender, personal status, and transnational legal practice can we glean from this court case? What are the ethical and epistemological implications of different methodological approaches to the same research material? How does studying the legal system change the debate on the state and on sovereignty in Lebanon? What would an archival approach to queer life in the Middle East bring forth, beyond debates on subjectivity and authenticity? Can we read a queer legal archive outside the trope of criminalization? This paper will offer a transnational approach to the study of law that is anchored in sex, colonialism and its legal afterlives, and the life of one woman, standing before a Lebanese court, one year after the end of the civil war, petitioning the state. .
Guantánamo-the-prison on the US naval base on Guba was created to detain Muslim males captured in the "war on terror." Guantánamo is a sui generis phenomenon because its creation revealed a preexisting but unacknowledged weakness in the rule of law and its continued existence actively degrades the rule of law. In this paper, I argue that Guantánamo is a phenomenon with expanding international repercussions for the rule of law.
Guantánamo is not like other US prisons that existed at the time of its creation because people imprisoned there were assigned a rightless status by presidential decree even before anyone was taken into US custody. Men and boys transferred to Guantánamo were held largely incommunicado and their identities were classified. Secret detention was a sui generis phenomenon for the United States, and Guantánamo was its address. While other regimes disappear and torture people, Guantánamo was constructed through legal interpretations, rationales, and justifications—it was made “legal” by government lawyers.
In the “war on terror,” the CIA’s top-secret detention and interrogation program was a separate operation. But its secret program became part of the Guantánamo phenomenon when the Bush White House passed along the menu of torture techniques authorized for the CIA and the accompanying legal rationales to the Pentagon which adopted them for military interrogators at Guantánamo.
The Guantánamo phenomenon throws into relief the meaning of “legal laws.” By 2001, there was a universal consensus—in principle, if not practice—that fighting wars legally required adherence to the 1949 Geneva Conventions. Guantánamo was created to undermine this consensus under the cover of “law.” This executive power grab, which has not been reversed, illuminates a preexisting but unacknowledged and previously unexploited weakness in the rule of law.
The Guantánamo phenomenon includes the ways other governments emulated US “war on terror” prisoner policies. It also illustrates the manufactured inefficacy of international criminal law enforcement. The impunity of US officials was produced by the refusal of successive US administrations to punish criminal violations of international laws in domestic courts, and the willingness of courts to accept government arguments that such cases are non-justiciable. Impunity was transnationalized by US diplomatic pressure on foreign governments, either by securing their dismissal of cases against US officials in own courts or stonewalling the mandate of the ICC. The combined effects have done grave and possibly irreparable damage to the rule of law internationally.
In this paper I will examine the law’s relationship to the Question of Palestine through three themes. First, there exists a striking incongruency between the volume of law regarding the Question of Palestine and the lack of legal regulation regarding the reality of Palestine. Nearly any layperson can list several UN resolutions regarding Palestine that have had little or no material impact. Moreover, other bodies of applicable international law from human rights to laws of war are inept when it comes to regulating Israel’s behavior or protecting Palestinians. Examining the relationship between law and power through Palestine, it becomes clear that the law’s efficacy is contingent on the military, economic, political, and moral balance of power. Not only has the law had a varying and sometimes negligible impact, it has also been used strategically to advance Israel’s national interests. Second, even while the law is seemingly doing very little to regulate Israel’s behavior, legal discourse is shaping Palestinian politics. For example, consider how the passage of UNSC Resolution 242 (1967) steadily shifted the Question of Palestine from a colonial situation to a state building one. Although this shift was not immediate and was initially met with resistance from the PLO, it ultimately came to redefine the Question of Palestine by the late 1980s. Similarly, the adoption of the 2005 BDS Call which based its demands on human rights and international law, catalyzed a shift in understanding the Question of Palestine within a rights-based framework. This shift was both beneficial for its democratizing capacity in enabling a universal discourse, and counterproductive in that it threatened to depoliticize the Question of Palestine all together. Finally, taking a closer look at the administration of Israeli law and the Palestinian experience of law demonstrates how hyper-legality and lawlessness can and do co-exist. Due to the settler colonial nature of Israel, the lack of a constitutional order that includes Palestinians and the administration of martial law, which is exceptional by definition, Palestinians are subject to legal micromanagement without the attendant benefits of due process, knowledge of the law, or reliance upon its terms. After framing the relationship between law and the question of Palestine through these different themes, I discuss whether the law itself is merely a political and social fiction.