Featured Author: Rouba Al-Salem

Rouba Al-Salem is our latest Routledge Featured Author. Read our interview to discover more about her recent book, Security, Rights and Law.

"One particular point to which the different lawyers and civil society organizations kept reverting on a constant basis, concerns the continued usefulness (and wisdom) of litigating on behalf of Palestinians in front of the HCJ."

Rouba Al-Salem graduated with a PhD in international law from Université de Montréal. She has previously worked in human rights legal research, advocacy and training as it relates to the Middle East, both at the NGO and UN levels.

This book examines how the Israeli High Court of Justice (HCJ) has interpreted and applied international law principles in adjudicating petitions filed by Palestinians. The research focuses on HCJ judgments that have been rendered since the outbreak of the Second Intifada (2000) in relation to petitions challenging the legality of measures implemented by various Israeli governments and military authorities for the professed need of enhancing the security of Israeli settlements and settlers in the occupied West Bank. It discusses to what extent the HCJ provides a venue for an effective domestic remedy for alleged violations of the Palestinians’ internationally protected rights. It further analyses the judgments of the Court seeking to demonstrate why it appears to show a preference for invoking principles of Israeli administrative and constitutional law, thereby promoting the domestic rather than international Rule of Law. Although the jurisprudence of the HCJ has often been hailed as that of an ‘activist’ court, the analysis of petitions adjudicated by the Court between 2000 and 2014 illustrates why its approach is ill-suited to a situation of prolonged military occupation. Finally, the book evaluates what impact the Court’s adjudication, reasoning and interpretation has on the normative coherence of the international law of belligerent occupation.

What inspired you to write this book?

While this book is the outcome of a PhD research journey, which I began as a PhD student at the Faculty of Law, Université de Montréal, my interest in the issue began much earlier, when I lived and worked in the field of human rights in the occupied West Bank. During that time, one of the things that struck me the most was the heated, and often emotional, reactions and debate that the adjudication by the Israeli High Court of Justice (HCJ) of petitions by Palestinians was capable of generating (every time) between and among colleagues working at various Palestinian and Israeli human rights organizations. One particular point to which the different lawyers and civil society organizations kept reverting on a constant basis, concerns the continued usefulness (and wisdom) of litigating on behalf of Palestinians in front of the HCJ. My recollection of these discussions, long after they had taken place, is responsible for generating the writing that has resulted in this book.

What audience did you have in mind whilst writing you book?

This is a very good question. As I mentioned, the book is based on the thesis that I wrote while I was pursuing my PhD at the faculty of law, University of Montreal. Initially, I spent a lot of time ensuring that the amount of information that I had provided, by way of background on the Israeli-Palestinian conflict and its legal and political context is sufficient but not too overwhelming for my readers. The circle of ‘expected’ readers was rather small at the time: my PhD supervisors, the members of the defense committee, my external examiner. Nevertheless it proved to be a good exercise for when I embarked on using the thesis as a backbone for my book. The audience I had in mind was in principle still the same: academics, jurists and legal scholars interested in the fields of the international law of belligerent occupation and/or the international law of armed conflict, as well as students and human rights practitioners interested in the applicability of human rights in a situation of occupation. It is equally relevant to Palestinian, Israeli and international human rights lawyers who litigate on behalf of Palestinians and/or Israelis in the Palestinian/Israeli context, as well as those working on human rights issues related to the conflict more broadly. I also hope that graduate students in the field of political science, Israeli studies, colonial studies and international law would also constitute part of the target market.

What makes your book stand out from its competitors?

Traditionally, the literature review regarding the Israeli High Court of Justice’s adjudication of petitions by Palestinians from the occupied territory has focused on the manner in which the HCJ’s justices have interpreted relevant international legal rules and principles of the international law of belligerent occupation. This book is different in that it approaches the implications of the HCJ’s adjudication from another angle: It encourages the readers to view the Court’s extensive invocation of principles of International humanitarian law and of international human rights law since 1967,as part of its declared commitment to promote the international rule of law(RoL) with its formal and substantive aspects.However, once we analyse more closely the judgements of the Court, the research findings seek to demonstrate why the Court feels much more comfortable invoking principles of Israeli administrative and constitutional law, thereby promoting the domestic RoL instead of the international RoL.

To support this conclusion, the book examines how the Court has made extensive use of Israeli statutes, and cannons of interpretation when adjudicating competing interests (such as those of settlers and/or Israeli government and military authorities v those of the Palestinian civilian population). One of the most important tools that the Court has used to adjudicate these competing interests is the proportionality principle as grounded either in Israeli administrative or in Israeli constitutional law. Through an analysis of the petitions that were adjudicated by the HCJ between 2000 and 2014, the book seeks to demonstrate why the Court’s approach is ill-suited to a situation of occupation. This is because the rights of the occupied civilian population are rights that are first and foremost protected under international law (primarily the international law of belligerent occupation). Hence, viewing the Court’s adjudication through the international/domestic RoL dichotomy, allows the reader to better understand why the Court is often unable and/or unwilling to provide effective legal remedy to Palestinians when adjudicating petitions challenging the legality of security related measures more generally and those allegedly taken for the safety of Israeli settlements and settlers since 2000.

A second element, concerns the resort to the idea, developed by Israeli scholar Orna Ben Neftali, that the rules and principles of the law of belligerent occupation can be broadly categorized into three normative principles: that occupation is temporary; that it is a form of trust; and that it does not bestow sovereignty by the Occupying Power over the occupied territory or parts of it. My research seeks to adopt her normative framework as a point of reference for expanding the discussion beyond the legality/illegality of Israeli government measures in order to evaluate how the HCJ’s adjudication of security related policies either promote or undermine the normative foundation of this body of law.

A third element that this research claims to do differently is that it provides analysis of HCJ judgements (post 2000) concerning settlements/settlers and security related measures which up and till now, have only been available in Hebrew. This has allowed the research to provide a detailed description of much of the case law that to date, has not been available to a non-Hebrew reading scholar and to extrapolate common trends in the position of the petitioners, the respondents and the Court’s reasoning.

A fourth element that is different about my research is that the analysis and findings have been supplemented by qualitative information extrapolated from interviews that were conducted with lawyers (Jewish Israeli and Arab Palestinian citizens of Israel) who have regularly petitioned the HCJ on behalf of Palestinians on many of the issues addressed in this research. The main objective has been to garner their views (as ‘repeat players’) on whether or not and how the Court’s approach promotes or undermines the respect for the three normative principles discussed above, and the implications that this has had for the normative coherence of the law of belligerent occupation.

Lastly, In many ways, a judicial process provides petitioners with an important opportunity to tell ‘their story’ and express their narrative. Hence, one desired goal of this book is to provide an in-depth overview of the competing narratives of the parties and to demonstrate the powerful way in which the HCJ’s adjudication has affected the lives of millions of Palestinians living under military rule and has legalized measures in an occupied territory not just on the micro-level (i.e. the particular petition) but also the macro-level. Often highly succinct case summaries of HCJ judgments do not provide an overview of how the impact of a given policy on petitioners at the micro-level has implications on the macro-level. Where possible, this book has sought to provide more context and details in an effort to shed light on this important aspect.

What did you enjoy about writing the book?

The thing I enjoyed the most about writing this book is conducting the interviews with Israeli lawyers (both Israeli-Jewish lawyers and Arab Palestinian citizens of Israel), who regularly petition the Israeli High Court of Justice on behalf of Palestinians. Getting the opportunity to speak to them and hear their views on the different aspects of the HCJ’s adjudication has been a great privilege for me. In addition, I have had the chance to interview two Palestinian legal scholars who are also working and residing in the West Bank and two Israeli human rights activists. Their commitment to their work has been a real inspiration and is one of the reasons I have dedicated this book to Israeli and Palestinian human rights activists and lawyers working relentlessly to uphold the fundamental rights of the victims of this conflict.

Another aspect that I very much enjoyed is the working relationship I developed with an Israeli undergraduate law student, whom I hired to identify and translate the HCJ’s decisions that were only available in Hebrew. I was very lucky to stumble upon Avichay, because prior to starting his undergraduate law degree in Montreal, he already had extensive professional experience working with Israeli laywers in Jerusalem. This was a person who knew the legal issues in depth, and it was a real privilege and joy to work with him. I benefited immensely from his knowledge and understanding of the intricacies of Israeli law and the realities on the ground, especially concerning East Jerusalem.

What is your academic background?

I have a bachelor of arts in international relations from the American University in Cairo. Subsequently, I pursued a master of arts in Middle East politics from Exeter University in the UK and a Master of Law in Public International law from the London School of Economics and Political Science. And lastly, I graduated with a PhD in law from Montreal University. 

What advice would you give to an aspiring researcher in your field?

My advice for aspiring researchers in the field is to follow their passions in the field. Even if the topic that they are interested in has been extensively researched, don’t give up to soon on finding new ways to explore the topic. It takes a lot of diligence, courage and can be hard to do. In addition, and even if your topic is entrenched in the field of international law, reach out across different disciplines. You will be surprised how enriching to your analysis this can be. 

Do you have plans for future books? What’s next in the pipeline for you?

For the moment, I do not have any plans for future books.Currently however, I am conducting research on the integration related challenges facing Syrians who have been resettled in Canada, through private or government sponsorship since 2015. To date, there have been an estimated 40,000 Syrians who have been resettled by Canada since the beginning of the Syrian civil war, many of whom have come to reside in Quebec, the French speaking province where I reside and I have an article on this issue that will be published in spring 2020.

What is the last book you read (non-academic)?

I am a mother, so I am afraid that the last book I read was a parenting book: How to Talk so Little Kids Will Listen: A Survival Guide to Life with Children Ages 2-7 by Joanna Faber and Julie King. Currently, I am reading a book in Arabic called Al-Mawlooda (The Newborn) by Nadia Kamal, which, in a nutshell, a novel about the life of the author’s mother, who was born to an Egyptian Jewish father and an Italian mother. The pair met in the 1920s and lived in Cairo, Egypt.

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Click on the image below to access a free chapter of Rouba Al-Salem's recent book, Security, Rights, and Law