Introduction
The second largest union in Canada, the National Union of Public and General Employees (NUPGE) recently made a statement on the recent Palestine-Israeli conflict:
NUPGE Statement on the Escalation of Violence in Israel and Palestine
October 12 2023
Like all Canadians, indeed all people, we are horrified by the scenes of suffering and pain we are seeing in Israel and Palestine after the severe escalation in violence that occurred on October 7, 2023.
Our thoughts are with all those who have family or loved ones in the region, as well as with the innocent people living there.
We condemn the Hamas attack on Israel as well as the retribution by the State of Israel on the people of Palestine. We denounce any acts of violence against innocent civilians.
We are concerned that the actions of the State of Israel against the peoples of Gaza will not lead to a peaceful resolution. Denying a population food, water, electricity, and other necessities of life will only create further misery and hostility.
Canada has historically taken a strong stand against the targeting of civilians and religious sites. The National Union of Public and General Employees (NUPGE) calls on the Government of Canada to
- immediately call for a cease-fire by both parties,
- demand the enforcement of international law [my emphasis],
- work toward a peaceful resolution that respects the rights of Palestinians and Israelis.
NUPGE has long called for a resolution to the conflict between Israel and Palestine that respects and follows all UN resolutions and international law. This includes the withdrawal of Israel from occupied Palestinian lands. We stand in solidarity with all those who seek a just and lasting peace in the region and further commit to working towards that goal.
I wil focus in this post on the issue of calling on “international law” as the grounds for resolving conflicts; such a view will be criticized.
The Position of the Working Class with Respect to Law in General
An appropriate approach to law from a working-class perspective is provided by David Ranney (2019), in his work Living and Dying on the Factory Floor: From the Outside In and the Inside Out:
Lawyers and the Courts
It has been my experience that many activists look to the law, courts, and
lawyers as a substitute for action. My view has consistently been that the law
and the courts are designed to protect the capitalist system so that reliance
on the law becomes a limiting factor in any class struggle. …The objective … legal strategy was to offer a line of protection for the workers in order for them to pursue the[ir] objectives….
Using legal means are not excluded, but only as an adjunct of an independent strategy, and that strategy needs to be linked to the abolition of the class power of employers. Furthermore, it should be made clear to workers that the use of the law is tactical and in no way idealizes the law as such.
NUPGE, however, does not seem to recommend the use of international law as a tactical means for wider goals; it seems to refer to international law as if it had some sacred existence and must be followed because it is “law.” Indeed, as I have shown (see Fair Contracts or Collective Agreements: The Ideological Rhetoric of Canadian Unions, Part Four: The National Union of Public and General Employees (NUPGE) (The Second Largest Union in Canada)), NUPGE idealizes collective bargaining, collective agreements and, indirectly, labour law.
The importance of the issue relates to the importance of the function of law in a society dominated by a class of employers–as Thomas Mathiesen (1980), in his work Law, Society and Political Action: Towards a Strategy under Late Capitalism, points out (pages 149-150):
Junction of the law which is regarded as necessary for the material level. The law is a product of material conditions, and its function is in its turn necessary for the furthering of that materiality which generated the law. Systems other than the legal one, for example the religious, may have the same function in that the law in itself is not universally necessary; what the law does today was probably done to a large extent by religion during the Middle Ages. Terje Rod Larsen has emphasized this in the following way: it is necessary to distinguish “conceptually between a function and the empirical mechanisms
which maintain the function. This distinction is quite decisive, in that it implies that we cannot deduce from a determination of the functions in a social system the concrete historical mechanisms which maintain the functions” (Larsen, 1976).At the same time, however, it must be added that different systems of ideas, for example law and religion, probably function supportively, to varying degrees, towards various basic types of interest and power structures. Even if the supportive function and not
the conccrete form which has this function is necessary, the form is not therefore arbitrary: under some basic material conditions, one form will function best, and under other conditions another. One form is probably more easily generated by some basic material conditions (the law in its full-grown form is generated by the capitalist mode of
production), while another form is generated by other basic conditions (religion is primarily generated by precapitalist modes of production). What the law does today, it could not have done so well during the Middle Ages, and what religion did during the Middle Ages (and probably in other precapitalist modes of production) it can hardly do today. I shall return to this; I only, wish to point out here that in view of this, the basic material conditions constitute, together with the form as well as the function of what in German istailed ‘iiberbau*—the ideological ‘superconstruct’ (superstructure)—a
sociological totality. This perspective makes the feedback function which the law has in our society into a necessity. Without this function, the capitalist mode of production would slow down and, according to this reasoning, probably come to a standstill. As a
consequence of this it appears, to those whb wish to overthrow this mode of production, that the struggle, the unveiling, the deconstruction, of the legal superconstruct is a significant aspect of the revolutionary struggle. A political work, a critical law, which aims
at and which in practice leads to a new and adjusted legislation, will, as we have seen, in the main follow the material interest and power structures. A political work, however, a critical law, which consistently and uncompromisingly negates the legal, and demasks the
dependence of the legal on the material, will, through consciousnessraising of others, make a revolutionary contribution. It is, from this point of view, a misunderstanding to believe that a political struggle against the legal superconstruct is wasted time from a revolutionary standpoint. This struggle is naturally not sufficient, and in markedly
revolutionary situations it is probably not even necessary, but in less markedly revolutionary situations it will be important: it is directed to a system on the support of which the material interest and power structures are dependent.
Relying mainly on law in general and international law in particular is hardly in the interests of the working class, whether at the national or international level. Law as such expresses, among other things, power relations in the form of apparent equality, and given the subordination of workers to employers legally, such a legal form hides the exploitation and oppression of workers. To appeal to the law as the ground or basis for justiyfying actions reinforces the sanctity of law and, indirectly, justifies the continued exploitaiton and oppression of workers.
The same applies to international law–its use should be tactical, and such use should be linked to an explicit criticism of the legitimacy of such law as law.
As Robert Knox (2010), in his article “Strategy and Tactics,” Finnish Yearbook of International Law, Volume 21, page 215, writes:
On this reading, the opposition would not be between ‘using the law’ (as a liberal) or
‘abandoning it’ (as a nihilist). Rather the question is on what terms is it possible to
use the law without fatally undermining longer term, structural considerations.
Knox goes on to refer to Rosa Luxemburg’s unifying of reform and radical change and their distinction. Pages 218-219:
Luxemburg’s point then is that it makes no sense to make a rigid distinction
between reform and revolution. !is is because the only way in which a movement
in favour of the overthrow of capitalism could be built up and gain the strength
to do so is through the struggle for reforms. However, Luxemburg is at pains to
suggest that nevertheless there is a distinction between (what was then) the social
democratic movement and ‘bourgeois radicalism’ – and this was the question
of strategy. Luxemburg argues that the only way in which the social democratic movement is not simply one that engages in ‘a vain e$ort to repair the capitalist
order’ is in its strategic goal of overthrowing this capitalist order.
The difference between strategy and tactics is what converts a particular action into a socialist action. If strategy is reduced to tactics–if socialism as the abolition of the class power of employers is abandoned as a serious practical goal–then all the action is a purely tactical and functions to reinforce the class power of employers. Page 219:
Whilst there is no rigid distinction between reform and revolution; in order
for the social democratic movement to not simply collapse into ‘bourgeois
radicalism’, it was necessary that the tactical struggles for reform be pursued not
in their own sake, but precisely in order to build up this movement. !us, the
particular tactics that are deployed, and the way in which they will be deployed,
must necessarily be shaped by this strategic goal.
International law, like national law, can be used in certain conditions, but only if a critical approach is taken. Page 219:
In the case of the liberal approach, the existing (legal) order is a ‘given principle which … determines the scope of any action’, in the case of the critical or radical approach the given order is simply something to be taken into account for reasons of expediency.
Liberals like the reps of the NUPGE (the New Democratic Party is itself liberal in these terms) have little concern for the need for tactics to be consistent with strategy since for them the only action possible is tactical since all strategy ultimately is to reinforce the class power of employers (even if modifying it to a certain extent). Page 219:
… liberals do not have to worry about strategic concerns in the same way
that critics do. Instead, their concerns are purely tactical, since they presuppose
the existing order in all of their actions. In contradiction to this, the only thing
that distinguishes the critical position is precisely that its ultimate objective is to
transcend the existing order. In order to remain critical, it is necessary that this
ultimate objective is immanent in everyday acts. As such tactical interventions
must be shaped by this strategic orientation.
The NUPGE can hardly be accused of engaging in a critical position.
What is needed is the focus on the unity of strategic concerns related to the abolition of the class power of employers and the related concern of the creation of a socialist society, where workers are no longer exploited and oppressed, with tactical concerns that arise because of speciic historical situations. Page 220:
In conflating strategy and tactics to the exclusion of the former, critical scholars
have oscillated between a liberal realpolitik, and a structural critique which
serves as a legitimating factor (of ‘good intentions’) but is ultimately without
content. … the way forward is to understand the necessity to frame tactics in terms of strategy. This double articulation: understanding that strategic concerns are absolutely vital, and then they can only be expressed through tactical interventions, is … revolutionary realpolitik. At the very least, this will entail not adopting those methods of intervening in the conjuncture which – whilst successful on their own terms – undermine
the ultimate objective. … Concretely, this would entail shifting the priority in a given intervention, not just to win on its own terms, but to use that struggle to advance the ultimate objective, through the construction of a movement, training its militants in struggle, connecting the party to the class etc.
In relation to the law (including international law), this involves, as noted above, using it on occasion without idealizing it. Page 221:
… the central point is that the working class must learn to act without the life-forms of capitalism ‘inwardly influencing its actions’. The concrete manifestation of this is that the
working class must avoid fetishising the law, instead seeing both state and law
as ‘mere power factor[s]’ whose importance is not derived from any moral or
historical essence. By consequence, law should be granted no more ‘importance
than any other external fact of life with which it is necessary to reckon when
deciding upon any definite course of action.’ This means that the breaking
of law (or conspicuous illegality) should not be romanticised or accorded any
special importance, since this law would have ‘preserved its authority … in an
inverted form’.… In this way, the law is accorded no special respect, and its form and structure is not
able to break up and block any social movement. It is simply an instrumental
consideration to be subordinated to the political needs of the moment. This is the kernel of what I have elsewhere characterised as ‘principled opportunism’. Instantly though, a question arises… in what sense can this be said to be different from the criticism of liberalism outlined above?
Principled opportunism and not just opportunism overcomes this limitation. Page 222:
This would mean that law should always be openly invoked instrumentally and openly subordinated to political considerations, with the particular legal arguments changed whenever the particular political needs change. These invocations are necessarily partisan, involving not the defence of a law or a right in general but in order to support the movement (and openly stated to be so).
On this account, law should never be invoked as an independent consideration: an intervention should never be conducted directly in the name of legality. This is the way in which strategy shapes tactics, if the aim is to undermine liberal legalism, appealing directly to the hold it has over people and their debates is unacceptable.
Principled opportunism is not opposed to invoking the law, but its use is different from the liberal use of the law (as expressed by NUPGE). Page 225:
…the strategic goal needs to frame these tactical interventions. … principled
opportunism demands that the deployment of legal argument be openly
subjected to political exigencies, with different arguments being deployed whenever necessary. As such, legal argument is being geared towards the strategic aim
of building a movement to overthrow capitalism, rather than on its own terms.
On the one hand, this will involve defensive struggles, where legal argument is
deployed in order to defend political activists when the state seeks to attack them.
To give an example in terms of the Iraq war then, international legal argument
could be involved to defend activists against criminal charges for sabotaging
military facilities. Equally – provided rhetorically this is characterised as being
for instrumental reasons – one might pursue a legal claim in order to attempt to
prevent an action, or ‘punish’ those involved with it. This could involve contesting
the legality of certain state practices – particularly those which might be said to
violate international human rights conventions – in order to publicly reveal these
practices, and perhaps to constrain their future use (thus giving the movement
a greater ability to organise.
The Position of the Working Class with Respect to International Law in Particular
On a Marxist listserve (see https://groups.io/g/marxmail/topics) to which I used to belong, as of October 19 (12 days after the Hamas attack on Israel on October 7), I searched for information using the term “international law.” I did not find one critical approach to the use of international law between those dates–so much for some “Marxist” listserves.
So, what does the international law say about the relation between Israel and Palestine (or at least Gaza and the West Bank)? From https://www.timesofisrael.com/un-human-rights-chief-israels-total-siege-of-gaza-prohibited-by-international-law/:
Israel’s total siege of the Gaza Strip, depriving civilians of goods essential for survival, is banned under international law, the United Nations human rights chief said on Tuesday.
Given Israel’s link to the imperial power of the United States, and its own murder and oppression of Palestinian workers, citizens, immigrants and migrant workers over the years, it would be useful to indicate that Israel’s actions are against international law and that such law should be used, if possible, to end the siege. However, at the same time, it should be made clear that such law not only does not address the issue of the exploitaiton and oppression of workers and others but reinforces such exploitation and oppression by implying that such exploitation and oppression is legitimate; after all, international law does not indicate that the daily exploitation and oppression of workers and others is illegal.
The Need to Consider the Class Situation in Palestine
The assumption among many on the left is that there is just one nation called Palestine that needs to be defended. However, a Marxist would need to engage in further inquiry to determine how Palestinians produce their lives.
At the same time, it would be necessary to develop a class analysis of both Israel, Hamas, the Palestinian National Authority (PNA) and so forth and its relation to the formation of a Palestinian independent state. I do not have the present capacity nor the time to do so, but at least some preliminaries can be addressed.
The PNA does not seem to be composed mainly of working-class indivduals. From page 370:
Most recently, the Palestinian national project has reformed into a (nonsovereign) state-like entity (the Palestinian National Authority, or PNA) that is preoccupied with safeguarding the achievements of the ruling of national-liberation veterans, national
capitalists, and a burgeoning middle class.
A class of employers and middle-people have arisen while a class of working-class people, the unemployed and the poor have also arisen. From Raja Khalidi (2018), “Nation and Class: Generations of Palestinian Liberation,” pages 368-392, Rethinking Marxism, Volume 30, Number 3, page 371:
However, during the hiatus of Palestinian armed struggle for national liberation that has ensued since the Oslo Accords of 1994 (broken in the Second Intifada of 2000 and the Gaza wars of 2009 and 2014), the market, capital, and free enterprise have not been idle. Indeed, as we enter the third decade of the political, institutional, and economic arrangements that were put in place by the Oslo Accords as an indefinite interim period before statehood, we see the flourishing of capital accumulation, marketization, privatization, financialization, and liberal trade. Meanwhile, masses of Palestinians both inside and outside Palestine flounder in poverty, unemployment, urban squalor, dispossession, environmental degradation, and general human indignity.
This contrasts with an earlier situation, where Palestinians were composed largely of the working class. peasantry and small middle-class. Page 376:
This national unity had crystallized by the 1960s in the form of the PLO even as class formation took a tortuous path in the abnormal conditions of the exile, impoverishment, dispossession, and geopolitical-legal segmentation of the Palestinian people (Smith 1986). This formation entailed the disruption and dispersion of those in situ links between class, capital, labor, and place that had begun to emerge before the Nakba. The bulk of the Palestinian people remaining within the area of historic Palestine ruled by Israel, Jordan,
and Egypt from 1948–67 were the poorer segments of the rural peasantry and urban workers along with the middle- and small-merchant class. Much of Palestine’s capital (industrial, real estate, financial, and commercial), estimated at $147 billion in 1984 prices, had either been destroyed or expropriated by Israel (Hadawi and Kubursi 1988).
Leadership of the Palestinian movement consists mainly of those from the middle class (in Marxist parlance, the petit bourgeois, or petty bourgeois). Page 377:
In creating the modern Palestinian national-liberation movement, these disparate refugees came mainly from the ranks of the Arab nationalist, Nasserist and Baathist, Muslim Brethren and liberal, and Marxist and Communist political formations around the Arab world, all of which had dominated Palestinian politics since the 1950s. If not working class in any Marxian sense, and if perhaps more aptly classified as petit bourgeois, this vanguard became (and largely remains) the Palestinian national leadership. It soon
mobilized the Palestinian refugee camp populations in Jordan, Syria, and Lebanon, who were collectively energized by the emergence of a bold Palestinian armed resistance in the wake of Israel’s 1967 defeat of the combined Arab armies. Under this leadership of diverse social forces, which had not assumed such position or power in the pre-1948 national movement, a new Palestinian revolutionary identity began to take shape just as a new program of liberation and national self-determination was being elaborated.
The issue of class among the left in relation to Palestine and Israel generally has been absent. From Oded Nir & Joel Wainwright (2018), “Where Is the Marxist Critique of Israel/Palestine?,” pages 336-355, in Rethinking Marxism, Volume 30, Number 3, page 338:
The result of the political bankruptcy of the liberal Israeli position is the nightmare of today: perpetual conflict, suffering Palestinians, futureless Israelis. The articulation of a robust leftist position is essential. To generalize in didactic and simplistic terms, the Left
has framed the conflict in terms of nation and religion—Israeli/Jew versus Palestinian/
Muslim—leaving class and capital aside. The political situation is thus domesticated into familiar categories that leave only one imaginable solution: two separate states. Even if this position was once valid, the territorial basis for a Palestinian state has been systematically destroyed by the Israeli state through the construction of walls, barriers, highways, checkpoints, and other apparatuses of colonization (Weizman 2007; cf., Tartir 2015). Facing these conditions, to chant demands for a Palestinian state reflects either bad faith or a hypocritical false optimism. Recognizing the absence of a two-state solution, we contend, should compel us to rethink Israel/Palestine though categories that cut across national lines.
“International law” since 1947 has opted for the two-state solution–and so has much of the left mimicking such international law:
United Nations Resolution 181, resolution passed by the United Nations (UN) General Assembly in 1947 that called for the partition of Palestine into Arab and Jewish states, with the city of Jerusalem as a corpus separatum (Latin: “separate entity”) to be governed by a special international regime. The resolution—which was considered by the Jewish community in Palestine to be a legal basis for the establishment of Israel, and which was rejected by the Arab community—was succeeded almost immediately by violence.
Such is the nature of much of the left these days.
By Way of Conclusion
Leadership by the petit bourgeois for an independent Palestinian state need not be opposed by the working class–but that all depends on the class situation in Palestine, in Israel, in neighbouring states and, of course, imperialist powers such as the United States. The question–related to the issue of the left’s stance with respect to law in general and international law in particular–is whether such a class alliance at this stage can further a movement towards the abolition of the class power of employers and the associated economic, political and social structures or would an independent working-class movement within Palestine form a better vehicle for achieving socialism.
The prospects for such a unity of tactics and strategy are not looking propitious. Page 383:
Both the bourgeoisie and the middle classes forming through this process, as well as the ruling political elites of the PLO, have developed material and power interests in a status quo that can deliver neither development nor national statehood. This is a dead end that can possibly be perpetuated but only at a growing risk to both social and national liberation.
In any case, the call by NUPGE for the enforcement of international law without qualification obviously idealizes law in general and international law in particular. This should not be surprising; the NUPGE, like many other unions, idealizes national law via the idealizing of collective bargaining and collective agreements.
What is needed, rather than such idealization of the law, is a policy that looks forward towards a socialist society and addresses present problems to see how they can be addressed in light of that goal.
The Abolitionary 