[Editors’ note: this post is part of our series on the theme of archive]
If legalism and the rights discourse comprise a cornerstone in Israeli citizenship, then a critique of Israel’s system of legal coloniality implies reading law itself as an archive. In what follows, I argue that the impasses of liberal legalism, as have been experienced by the Palestinians since the Nakba, can be critiqued by utilizing law in constructing a counter-archive to the one produced by Israeli legalism.
The Nakba, a foundational temporality in the Palestinian ontology, has been constructed within the Israeli legal discourse as a non (legal) event. If we think of the Nakba as the representation of the ‘governance of the prior’, then the Nakba comprises a tacit epistemological element within a colonial legal system. As such, (colonial) law’s singularity can only posit the Nakba as an exterior temporality. It could be argued that the absence of a legal decision denouncing the existence of the Nakba is actually due to this exteriority, which invalidates the Nakba as a point of reference. There is no single legal decision that denounces or even reveals the Nakba – instead, traces of the Nakba are disseminated through thousands of ‘mundane’ legal decisions, often but not always dealing with land dispossession.
This dissemination is what makes law a pivotal archive for the Palestinian ontological project, since it unfolds the Nakba into details that have been archived in legal procedures. Furthermore, despite the abstraction of the law, legal decisions introduce entries to real-life stories that produce, individually and collectively, narrations on pain, loss, hope and endurance. If addressed as a process, then it is a matter for social sciences to reproduce these accounts as a counter-archive, which allow the Palestinian participants in Israeli law to affirm their agency and narrative separately from their imposed legal subjectivity.
This year a legal case came to an end after being discussed for a decade and a half in several Israeli courts. The case of the small Bedouin villages of Umm al-Hiran and ‘Atir in the Naqab desert is a story that escapes the language of in/justice. A brief narration would describe it as following: In 1948, members of the Abu al-Qi‘an tribe were expelled from their original land in Khirbet Zubaleh in the Naqab, which they had cultivated for centuries. They were then ordered to move repeatedly from one location to another en masse until the Israeli military governor in the area finally sent them to Wadi ‘Atir, where they built ‘Atir and Umm al-Hiran, communities that have never been granted official recognition by the state. In recent years, the State of Israel has sought to demolish the villages and build new Jewish towns in their place. Early on in the litigation, the state argued that the Abu al-Qi‘an’s presence on the land was unlawful.
As part of their work representing the Abu al-Qi‘an, advocate Suhad Bisharah and urban planner Hanaa Hamdan from Adalah decided in 2006 to excavate the Israel State Archive, looking for documents to prove that the tribe was living in its current location because it had been ordered to move there by the military governor in 1948. One such document was found and presented in court as evidence refuting the state’s trespassing claim against the Umm al-Hiran and ‘Atir residents. Despite its interruption of the legal narrative presented by the state and being accepted by the court, the document nevertheless ‘failed’ to prevent the dismissal of the Umm al-Hiran and ‘Atir residents’ petition.
The document’s life would possibly end there if understood as a mere object that played the role of evidence within the life-circle of a legal case. The contested authority of archival documents is subjected to abstract ahistorical evidentiary legal regulations. Other documents’ lives would go unrecognized as holding a little or no evidentiary value, sometimes merely because they were written by Palestinians. Among other documents found in the Israeli archives was a letter sent by the head of the tribe, Farhoud Abu al-Qi’an, to the military governor dated 29 October 1949 (pictured below, English translation on second page). The letter requested the Israeli authorities to inspect damage to his house caused by the Solel Boneh construction company before the structure’s remnants could be ruined by the coming winter rains.farhoud-letter
[this document can be downloaded here]
‘Nomads Against Their Will – The attempted expulsion of the Arab Bedouin in the Naqab: The example of Atir–Umm al-Hiran’ (2011), is a report that reintroduced those archival documents by endowing them an authority beyond the law. By joining them with social and historical references, legal expertise, and urban planning schemes, this report produced a counter-temporality; one that intersects with the lived experience of Umm al-Hiran and ‘Atir residents. By that it not only challenged the authority of state law in determining the rules of representation, but also the law’s force in constituting a-historical Palestinian subjectivity.
The ‘Atir-Umm al-Hiran case inserts one reading of the link between law and archive, and one way in which Palestinians may activate Israeli archives in legal cases. However, such activation is incomplete if not joined to experiences of the Palestinians’ engagement with the law. The role of lawyers and legal aid organizations, as they stand at the threshold of Israeli law is also crucial for tracing the development of the legal discourse among the Palestinians. Ever since the Nakba, Israel’s liberal legal ideology has been a persistent technology of discipline and knowledge production. As such, its colonial epistemologies and practices against the Palestinians make the link between the archive and the law unavoidable.