Territoriality and Status in Human Rights Litigation: The Case of Israel/Palestine
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/09646639221124397 |
| Author | Irit Ballas |
| Date | 01 August 2023 |
| Subject Matter | Articles |
Territoriality and Status in
Human Rights Litigation:
The Case of Israel/Palestine
Irit Ballas
College of Law and Business, Ramat Gan, Israel;
University of Oxford, Oxford, UK
Abstract
Both territoriality and political status serve as parameters for determining the extent of a
state’s obligation to uphold human rights. Scholars have shown that different actors may
manipulate the scope of these parameters to serve their particular purposes. Based on inter-
views with lawyers from Israeli human rights organizations, this article shows how they also
manipulate the relationships between these parameters. When representing different clients,
lawyers from Israeli human rights organizations accentuate one parameter over the other,
demand congruity between them, or reject both. The findings highlight how the movable
intersections between territoriality and political status facilitate a multitude of discursive strat-
egies from which lawyers can pick and choose, to address political predicaments they face in
their praxis. Furthermore, by judiciously applying these strategies, lawyers are able to mobil-
ize the indeterminate relationship between political status and territoriality to destabilize
what they perceive to be the unjust boundaries promoted by the state.
Keywords
Human rights, citizenship, litigation, territoriality
Introduction
Territoriality and political status are commonly used as parameters for determining the
extent of a state’s obligation to uphold human rights. When representing cases in domes-
tic courts, human rights lawyers often find that these parameters present something of a
Corresponding author:
Irit Ballas, College of Law and Business, Ramat Gan, Israel; University of Oxford, Oxford, UK.
Email: irit.ballas@gmail.com
Article
Social & Legal Studies
2023, Vol. 32(4) 606–625
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221124397
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dilemma. On the one hand, arguing that their client’s case falls within the parameters
that define a state’s obligations to uphold rights—that is, because their political status
grants them certain rights or because they reside in a territory that falls under the
state’s jurisdiction—will likely aid their case. On the other hand, relying on a state’s allo-
cation of political status or its definition of its territorial obligations may silence political
protestations concerning past and present injustices that established and supported these
parameters in the first place (Patler 2018; Hajjar 2017; Kemp and Kfir 2016; Bisharat
2012; Jabareen 2010; Yashar 2005; van der Vet 2014).
In this article, I examine the testimony of lawyers who regularly face this dilemma: those
working for Israeli human rights organizations. They represent a variety of clients with different
political statuses: citizens, residents, asylum seekers, and ‘protected persons’living in occupied
territories. Their clients may also reside in territories with different legal statuses, including occu-
pied territory, state territory, or extraterritorial areas that are beyond the state’s jurisdiction.
Moreover, these lawyers have to deal with the Israeli State’s exploitation of the flexibility
created by the inconsistency of these parameters and the indeterminate relations between them.
I show how they are able to soften the abovementioned dilemma not only by bending
each of these parameters to gain various professional, political, or strategic advantages, as
scholars have shown in diverse realms (Patler 2018; Kemp and Kfir 2016). They also
address this dilemma by strategically articulating different relationships between territori-
ality and political status when making their case before the court, emphasizing either one
or the other, demanding congruence between them, or rejecting both. Thus, I demonstrate
that human rights lawyers not only take advantage of the elasticity of political status and
territoriality to shape the most favourable narrative for the client’s case. They also stra-
tegically leverage the flexible interplay between these parameters.
Moreover, I argue that, when Israeli lawyers (re)formulate the different relationships
between the two parameters, they challenge the very boundaries of the political community
promoted by the state. By maneuvering the relationship between ‘territoriality’and ‘political
status’, they promote an indigenous community of Palestinians from both sides of the border,
a nation-state with different borders, or a universal political community. Thus, the article also
shows how the indeterminate relationship between territoriality and political status may be
mobilized to advance discourses that challenge the (imagined) boundaries of the nation-state,
which are based on a premise of congruity between these two parameters.
In Section 1, I examine the role played by territoriality and political status in restricting
or expanding a state’s obligation to uphold rights. In Section 2, I describe the character-
istics of domestic human rights litigation in Israel/Palestine and the consequent dilemmas
that arise for lawyers. Section 3 deals with the methodology and scope of the study.
Section 4, the main body of the article, examines the different discursive strategies
employed by the lawyers I interviewed (manipulating combinations of ‘territoriality’
and ‘political status’) to address the aforementioned dilemmas. In the conclusion,
I analyse the political and theoretical implications of these strategies.
1. Territoriality and Status as Grounds for Demanding Rights
States use territoriality as a means to delineate their jurisdiction. However, as critical
scholars have shown, the territorial jurisdiction of states is largely socially constructed
Ballas 607
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