Transnational Lawyering and Legal Resistance in National Courts: Palestinian Cases Before the Israeli Supreme Court

Abstract

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.