{"id":4239,"date":"2019-07-19T00:00:00","date_gmt":"2019-07-19T11:00:21","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/response-critiquing-in-the-light-of-the-abc-of-the-opt\/"},"modified":"2020-12-09T12:36:43","modified_gmt":"2020-12-09T11:36:43","slug":"response-critiquing-in-the-light-of-the-abc-of-the-opt","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/response-critiquing-in-the-light-of-the-abc-of-the-opt\/","title":{"rendered":"Response: Critiquing in the light of The ABC of the OPT"},"content":{"rendered":"

We are grateful to Verfassungblog for dedicating a\u00a0symposium to The ABC of the OPT<\/em><\/a>; to Anne Peters and Alexandra Kemmerer for their generosity of mind, indeed the contextual mindfulness in which they held a launching event for the book in Berlin (sponsored by both the Max Planck Institute for Comparative Public Law, International Law\u2018s Berlin Office and\u00a0Recht im Kontext<\/em>\u00a0(Humboldt-Universit\u00e4t zu Berlin) and wrote the introduction to this symposium; and to the contributors \u2013 Yael Berda, Michael Lynk, Nadija Samour, and Yuval Shany \u2013 for their thoughtful and munificent comments. Interwoven across the contributions to this symposium are two central themes: first, the use of conceptual frameworks as critical tools, and second, international law\u2019s relationship with state violence. In what follows, we will reflect on the contributors\u2019 comments regarding each of these themes.<\/p>\n

Conceptual frameworks as critical tools<\/strong><\/p>\n

In their contributions to the symposium, Yael Berda<\/strong> and Nadija Samour<\/strong> focus on two concepts crucial for critiquing the Israeli control regime: \u201ccolonialism\u201d (specifically \u201csettler colonialism\u201d) and \u201capartheid.\u201d Regarding the former concept, Berda<\/strong> highlights the book\u2019s relevance for understanding Israel\u2019s colonial dimensions. As she puts it, by \u201cfleshing out the concepts, doctrines and toolkits\u201d of the Israeli control regime, The ABC of the OPT<\/em> exposes how \u201cthe colonial and imperial phantoms that have created international law \u2026 are used today … against the Palestinian population.\u201d While Berda<\/strong> focuses on two entries \u2013 Military Courts<\/em> and Nomos<\/em> \u2013 her analysis could be applied to the entire book, and some of her observations are developed further in other entries. Moreover, the entry Violence<\/em> links Berda<\/strong>\u2019s own work on \u201cphantom sovereignty,\u201d on which her review here builds, to the issue of law\u2019s invisibility.<\/p>\n

Adding to this, Samour<\/strong> notes the discussion, in the entry Jewish Settlements<\/em>, of settler colonialism. In addition, she praises the focus of the entry Outside\/Inside<\/em> on connections and parallels between Israel\u2019s control over the West Bank and Gaza and pre-1967 laws and policies: Ottoman and British Mandate legal legacies (pre-1948), Israel\u2019s military rule over Palestinian citizens (1948-1966), the first Israeli occupation of Gaza (1956-1957), and Israel\u2019s devising of legal infrastructure for occupying the West Bank (the early 1960s).<\/p>\n

Yet, when it comes to the concept \u201capartheid,\u201d Samour<\/strong> levels criticism at The ABC of the OPT<\/em>. While acknowledging the book\u2019s discussion of apartheid, she censures it for not developing a fully-fledged critique based on this concept. \u201cI wonder,\u201d she writes, \u201cwhy the suggested approach is incapable of integrating \u2018apartheid\u2019 or \u2018annexation\u2019 as legal terms and as epistemological concepts of systematized characterization of what is going on in Palestine.\u201d<\/p>\n

Samour<\/strong>\u2019s remarks provide a welcome opportunity to clarify three interrelated aspects of The ABC of the OPT<\/em>. The first concerns the importance of the concepts \u201capartheid\u201d and \u201csettler colonialism\u201d for understanding and responding to Israel\u2019s control over Palestinian lives and territories. Not only do we fully agree with this argument, but we have articulated it ourselves elsewhere. Thus, already in 2005, Orna Ben-Naftali, in a 2005 article co-authored with Aeyal Gross and Keren Michaeli, argued that \u201cthe Israeli government’s actions \u2026 may well [violate] \u2026 the International Convention on the Suppression and Punishment of the Crime of Apartheid. \u2026 [If] practiced as a widespread or systematic policy, apartheid is [also] criminalized in \u2026 the Rome Statute as a crime against humanity.\u201d Similarly, Michael Sfard (2018) has observed: \u201cA person would have to be unconscious not to pick up the whiff of apartheid everywhere there is a settlement. Israel has created \u2026 a regime [exhibiting] the very core of the legal definition of apartheid, which is an international crime.\u201d As for settler colonialism, Viterbo (2017) has thrown light on the ways in which Israel\u2019s \u201csettler-colonial matrix [and its] \u2026 legal and political mechanisms \u2026 target \u2026 the collective subjugated sociopolitical [Palestinian] body \u2026 through a combination of segregation and fragmentation.\u201d As Samour<\/strong> rightly notes, critiques similar to these can be found in a growing body of scholarship.<\/p>\n

The ABC of the OPT<\/em>, in comparison, was designed to achieve a very particular aim, clarified as follows in its opening pages: \u201cto date, there has been no comprehensive, theoretically-informed, and empirically-based academic study of the role of various legal mechanisms, norms, and concepts in shaping, legitimizing, and responding to the Israeli control regime. This book seeks to fill this gap, while shedding new light on the subject.\u201d In his contribution to this symposium, Yuval Shany <\/strong>seeks to convey this aim: \u201cthe format of a legal lexicon [is] dedicated to specific legal terms and rhetorical devices (or newspeak).\u201d Berda<\/strong>\u2019s contribution adds: \u201cthe use of the lexicon seeks to cut through the [Israeli regime\u2019s] colonial grammar.\u201d<\/p>\n

Second, for Samour<\/strong>, \u201cthe lexicon largely remains within Israeli military-judicial thinking, with the editors employing the first letter A for \u2018assigned residency\u2019 \u2026 [as opposed to] \u2018apartheid\u2019 or \u2018annexation\u2019.\u201d However, as explained in the Introduction<\/em>, the book\u2019s format \u201cencompasses [not only] \u2026 the traditional function of a lexicon, as an instrument for the organization of knowledge,\u201d but also, crucially, \u201cthe function of reflecting on this knowledge in a critical manner that challenges and redefines it.\u201d An abundance of examples can be found throughout the book. The entry on Israel\u2019s so-called Regularization Law<\/em>, for instance, describes it as a \u201ccynically but aptly named\u201d statute that ends Israel\u2019s \u201c50-year-old masked ball.\u201d The entry Combatants<\/em> likewise censures Israel\u2019s use of the term \u201cunlawful combatants,\u201d while the entry Future-Oriented Measures<\/em> unmasks sanitized phrases such as \u201ctargeted killing\u201d and \u201croof knocking.\u201d Similarly, the entry Security Prisoners <\/em>not only criticizes this Israeli legal category but also calls attention to the resistant Palestinian term: \u201cpolitical prisoners.\u201d The list could go on. Contrary to Samour<\/strong>\u2019s portrayal of discourse as fairly fixed, then, this book\u2019s lexical mapping aims to deconstruct, problematize, and thus subvert Israel\u2019s legal language.<\/p>\n

Finally, by no means do the entry headings exhaust the concepts with which the book engages. Apartheid, in particular, is discussed in at least three entries (partly mentioned by Samour<\/strong>): Geneva Law<\/em>, Proportionality<\/em>, and Temporary\/Indefinite<\/em>. Annexation, the other concept invoked by Samour<\/strong>, is discussed at length in seven entries: Border\/Barrier<\/em>, Geneva Law<\/em>, Nomos<\/em>, Proportionality<\/em>, Regularization<\/em>, Temporary\/Indefinite<\/em>, and Zone<\/em>. In this manner, as noted in the Introduction<\/em>, the book\u2019s \u201canalytical and deconstructive moves take place at both the level of each separate entry and also \u2026 at the level of their interaction. Indeed, to a large degree, the meaning of each term or concept is to be found in its relation to the other terms and concepts\u2026 This conception of meaning as relational is inspired in part by Ludwig Wittgenstein\u2019s \u2018family resemblance\u2019 theory, and in part by Derrida\u2019s writing on \u2018diff\u00e9rance.\u2019\u201d<\/p>\n

International law\u2019s relationship with state violence<\/strong><\/p>\n

As noted in its opening pages, The ABC of the OPT<\/em> \u201cprovides insights that are relevant to other situations elsewhere in the world, particularly with regard to \u2026 the law\u2019s role in relation to state violence, and justice.\u201d The contributions by Michael Lynk<\/strong> and Yuval Shany<\/strong> provide an apt opportunity to contemplate on the ways in which these issues are addressed in and beyond our book.<\/p>\n

Lynk<\/strong>, in particular, is an ardent champion of international law: \u201cperhaps the most invaluable asset on the side of those who believe in a compassionate peace in the Middle East is international law, and the rights-based approach towards justice, equality and peace that it represents. I say this because, at its highest and most noble, international law represents impartiality and universal values.\u201d In the Introduction<\/em> to our book, we call views such as Lynk<\/strong>\u2019s \u201ccritiquing before the law.\u201d This line of critique, we explain in the Introduction<\/em>, \u201ctells international law\u2019s story of its own awesome grandeur \u2026 Objective rather than subjective, international legal norms are defined by \u2026 [their] impartiality.\u201d Some entries in the book share this view with Lynk<\/strong>. The entry Deportations<\/em>, for instance, describes customary international law as \u201creflecting \u2026 an ethos of universally held values.\u201d<\/p>\n

Other entries, however, offer what we call \u201ccritique against the law,\u201d which, \u201crather than regarding international law (and law generally) as its normative basis, treats it as inherently violent\u201d (p. 19). This anti-legalistic critique is most extensively developed in two entries \u2013 Lawfare <\/em>and Violence <\/em>\u2013 the latter of which calls into question the common \u201cequation of violence with illegality\u201d and adds: \u201cpart of law\u2019s function is to deny its own violence. \u2026 [Law is] a mode of violence endowed with elevated social legitimacy, a violence that simultaneously denies and affirms physical and symbolic violence.\u201d This casts doubt on whether international law truly is, as Lynk<\/strong> portrays it to be, and whether it deserves such praise.<\/p>\n

Treading along similar lines to Lynk<\/strong>\u2019s, Yuval Shany<\/strong>\u2019s contribution exhibits what we describe, in our Introduction<\/em>, as another feature of \u201ccritiquing before the law\u201d: a tendency to \u201ctreat \u2026 international legal norms \u2026 as a formally ordered, rational, and hierarchical system of known rules and procedures \u2026 as something relatively fixed, if not in practice then in principle.\u201d This is apparent when Shany<\/strong> characterizes Israel\u2019s \u201capplication of the laws of belligerent occupation\u201d as \u201cdistorted\u201d and as \u201cundercut[ting] … [their] underlying principles.\u201d Similar language appears, for example, in the entry House Demolitions<\/em>, which laments the way in which Israel \u201cundercuts the rule of law.\u201d<\/p>\n

Yet, from a \u201ccritique against the law\u201d perspective, such formalist-legalist language might wrongly exonerate international law \u2013 whose so-called \u201cunderlying principles\u201d Shany<\/strong> depicts as standing in contrast to Israel\u2019s \u201cdistorted application\u201d of it. \u201cIt is\u2026 due to\u2026 law\u2019s malleability to diverse (and often competing) interpretations,\u201d we note in the Introduction<\/em>, \u201cthat law provides a framework\u2026 for continuing war and state violence by other means.\u201d For Shany<\/strong>, this \u201celasticity\u201d is a hallmark of \u201cthe laws of belligerent occupation.\u201d However, as revealed in the entry Military Courts<\/em>, one can have no certainty as to how any area of law, even ostensibly clear-cut statutory terms, would be interpreted and applied.<\/p>\n

Both Lynk<\/strong> and Shany<\/strong> frame the Israeli\/Palestinian case as a unique conundrum. For Lynk<\/strong>, the coexistence of Israel\u2019s hyper-legalism with its undermining of the promise of the rule of law is a \u201cparadox.\u201d Somewhat similarly, Shany<\/strong> speaks of Israel\u2019s conduct in terms of a sui generis: \u201cWhat is exceptional about the Israeli occupation \u2026 is that unlike other modern occupiers, Israel attempted to pursue policies which run contrary to the basic tenets of the laws of belligerent occupation while resorting to extensive interpretation and application of these very same laws.\u201d Yet again, these accounts shift the blame away from international law. But what if Israel\/Palestine presents us with a broader lesson about international law\u2019s relationship with state violence? As demonstrated in the entries Export of Knowledge<\/em> and Combatants<\/em> (and noted in the entry X Rays<\/em>), the ideas and policies developed in Israel\u2019s \u201clegal laboratory\u201d have been exported to other parts of the globe, including Western counterinsurgencies in places such as Iraq and Afghanistan. Like Israel, though usually to a different degree, other countries have combined legalism with undermining the (mythical) \u201crule of law.\u201d Part of what makes The ABC of the OPT<\/em> so troubling, then, is its relevance for law\u2019s relationship with state violence far beyond Israel\/Palestine.<\/p>\n

In combining critiques \u201cwith the law\u201d and \u201cagainst the law,\u201d The ABC of the OPT<\/em> seeks to provide not only an unusually comprehensive and detailed analysis, but also a unique critical framework greater than the sum of its parts. It is precisely conversations such as this symposium that give hope that this critical framework is indeed bearing fruits.<\/p>\n

 <\/p>\n

Prof. Orna Ben-Naftali, Emile Zola Chair for Human Rights, is the Rector of the College of Management Academic Studies, Israel.<\/em><\/p>\n

Michael Sfard is an Israeli human rights lawyer and the legal adviser to several Israeli human rights organizations and peace groups.<\/em><\/p>\n

Hedi Viterbo is Lecturer in Law at Queen Mary University of London (starting in September). His research examines legal issues concerning state violence, childhood, and sexuality from an interdisciplinary and global perspective.<\/em><\/p>\n

 <\/p>\n

Cite as: Orna Ben-Naftali, Michael Sfard and Hedi Viterbo, “Response: Critiquing in the Light of The ABC of the OPT”, V\u00f6lkerrechtsblog<\/em>, 19 July 2019.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

We are grateful to Verfassungblog for dedicating a\u00a0symposium to The ABC of the OPT; to Anne Peters and Alexandra Kemmerer for their generosity of mind, indeed the contextual mindfulness in which they held a launching event for the book in Berlin (sponsored by both the Max Planck Institute for Comparative Public Law, International Law\u2018s Berlin […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[5287,5286,5285],"article-categories":[5080,3572],"doi":[],"class_list":["post-4239","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-hedi-viterbo","authors-michael-sfard","authors-orna-ben-naftali","article-categories-book-review","article-categories-symposium"],"acf":{"subline":""},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4239","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4239"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4239\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4239"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4239"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4239"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4239"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4239"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4239"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}