PODCAST TRANSCRIPT: How Israel wields international law as a license to kill
This transcript was generated using an AI transcription service and lightly edited for readability. Please consult the corresponding audio before quoting.
[music]
Neve Gordon
The elites have lost the common sense, not in Israel, but in Europe and in the United States. The common sense is now pro Palestine. The common sense understands that the Palestinians have been repressed, have been violated for years and years. The ruling class no longer controls the narrative in that sense, and they are afraid. And so we are in a moment, I’ve been around for decades doing this kind. The common sense is now ours. You go in the streets, most people in the streets will agree that Israel is genocidal, that it’s misbehaving, that it’s carrying out war crimes. We need now to continue and continue.
Dikla Taylor-Sheinman
Welcome to The +972 Podcast, your direct line to the journalists, thinkers, and activists struggling for justice in Israel Palestine. Our podcast grounds the discussion in lived realities to bring you closer to the issues that matter most between the river and the sea. +972 is independent and reader funded. If our work matters to you, become a member or donate at 972mag.com/members. I’m Dikla Taylor Shaneman, editor at +972 Magazine, and your host for today’s episode. Watching Israel obliterate Gaza over the past three years, it’s easy to conclude that international law has failed in its mission of upholding human rights. South Africa’s genocide case against Israel at the International Court of Justice, filed almost three years ago, is still likely years away from a final judgment, While arrest warrants issued by the International Criminal Court against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant have yet to produce arrests two years on.
It can seem obvious that the courts move too slowly, they lack meaningful enforcement mechanisms, and they’re incapable of stopping atrocities as they unfold. But what if this critique doesn’t go far enough? What if the problem is not merely that international law is failing to prevent mass violence, but that states can actually use the language and categories of international law itself to justify that violence?
This is the question that runs through much of the work of my guest today, Neve Gordon, Professor of International Law and Human Rights at Queen Mary University of London. With Nicola Perugini, Neve is the author of “The Human Right to Dominate” and “Human Shields, a History of People in the Line of Fire.” And just this past July, he published “The Gaza Tribunal: Britain’s Complicity in Genocide”, which is coauthored with Labor Party leader Jeremy Corbyn and legal scholar Shahd Hammouri. I’ve had the good fortune of speaking with Neve over the past few years for stories that I’ve reported, and somehow our conversations always seem to end up somewhere deeper than the kind of technical facts, leading us to the institutions that supposedly constrain state power, be it the courts, international humanitarian law, human rights organizations, and the strange ways in which those same institutions can also reproduce it.
So today I wanted to take advantage of the kind of generous format of The +972 Podcast to actually stay with some of these questions. Neve, thank you for sitting down with me in London.
So maybe we can start with the concept of failure. When people talk about international law and they say that international law has failed or that international law is dead, they usually mean, as I just said, that the courts act really slowly, that they depend on states for enforcement, that states that are quite powerful, like the United States and Israel, can simply ignore the court’s rulings. But I’m wondering if failure, to your mind, is kind of the productive way of thinking about this, about what we’ve witnessed, particularly in Gaza, or do you think that that framing misses something more fundamental?
Neve Gordon
I think failure is not a bad term, but there are other things at play. First, maybe we should understand what is international law and how it works. And so what does the layperson think when they think about international law? They think that it’s a set of rules that was created to regulate violence in armed conflict to reduce or restrict certain kinds of violence and ultimately to reduce the levels of violence. And those that breach these kinds of regulations should be held accountable to it. That’s the kind of, I would say, layperson understanding of international law. And then they watch TV and they see a warring party bomb a hospital and they know that hospitals should be protected. And they say to themselves, this is a war crime and therefore that country should be held accountable and so forth. Now, this is not wrong. It’s not a completely wrong assessment of international law, but it’s a very partial assessment of international law. And so I would like to introduce, maybe to talk about three other aspects of international law that one should add to this story. They do not replace it, but they add to it, and then it kind of problematizes that idea of what international law does.
The three are one has to do with the historical development of international law, how international law was created through its encounter with colonialism and was part of the imperial project. Two, that international law is a tool of state actors that want to monopolize the legitimate violence. And three, I want to talk about the methodology of international law, what I would call the methodological eventivism of international law. So the first one is that international law emerges on the historical stage really in the colonial project really to kind of justify the colonial dispossession of the indigenous populations and to give it some kind of moral valance. And so this is important for several reasons, one of which is it tells us how racism is part of the law itself, because it was how, let’s say, the Spanish colonizer came to South America and wanted to justify its colonial project when it meets the colonized, which are not conceived as fully human, and therefore you can relate to them differently.
This history of international law and its encounter, as I hope we’ll see through examples from today later on in the interview, is still with us in many ways, and the racism was from the get go within the law, its traces are still very apparent in international law. And therefore, what we will see is a different kind of, I would say, application of the law to different populations. And we’ll see that with human shielding. The other thing is that international law, the treaties, are ultimately treaties between states about how they regulate the violence between them. And part of the role of international law is to delegitimize violence that is carried out by non-state actors. And this, of course, includes liberation movements. And the third thing is what I call the methodological eventism that the law is not interested in processes, it’s not interested in patterns, it’s interested in events. So if we look at Gaza, for example, from October 7th till today, Israel has attacked hospitals and medical units close to 1000 times. What the law requires us to do is, tt doesn’t look at that pattern, that it’s a decimation of the health system in the Gaza Strip. What it wants us to do, what it wants the lawyer to do, is to look at each and every single event and judge each and every single event, whether it was legal and illegal. And the law, like any law, works through categorical imperatives, what you’re allowed or not allowed to do. And a series of exemptions. And of course, Israel uses these exceptions to justify every single attack of these thousand attacks.
It is not only about the question of lack of enforcement of international law that leads to lack of accountability, that leads to a kind of culture of impunity, which is true. We live in this kind of culture today. But to understand what is actually going on, you have to dig in much deeper.
Dikla Taylor-Sheinman
Let’s look at the concept of human shields just for a moment, because one of the things that actually surprised me when I was reading “The Human Right to Dominate” was the history of the use of the term human shields in the context of Israel Palestine. So it was human rights organizations like B’Tselem, who were initially sort of using this term to describe something that the Israeli army was doing to Palestinians. So this is something that, you know, at least Israel was doing since 1967, but maybe we could say its more institutional form comes in the 1980s with what Israel sort of with what the military euphemistically called the neighbor procedure, with what soldiers in Gaza during the current genocide have called the mosquito procedure or protocol, where essentially a Palestinian civilian is forced to enter a building ahead of soldiers, approach wanted people, remove suspicious objects, or literally stand between soldiers and Palestinian gunfire.
There was a particularly gruesome example from 2024, I believe it was in Jenin, where soldiers quite literally strapped a Palestinian to a military vehicle as they were raiding the refugee camp. But yet over time, this kind of concept of human shielding becomes something that Israel accuses Palestinians of doing. So how does that reversal happen?
Neve Gordon
There’s a lot to say about human shielding, because after “[The] Human Right to Dominate”, when we came across the concept and its uses, we decided to write a whole book about it. And in a way, the history of human shielding is the history of the Human, because only a human or someone that is recognized as a human can be a human shield. And so if we look at historically at human shields, the first chapter in the human shields book begins with this, the Civil War in the United States, because it was whites fighting against whites, and we, that’s when the concept really emerges, not through whites fighting against non-whites because the non-whites were never considered human or fully human.
And we see the siege on Charleston, and Charleston is is a slave city, and and half the population is probably black, and there …. and it and it’s a city full of women and children. And there is a siege on it. So the the general in charge of Charleston writes to the general that’s carrying out the siege and says, “If you don’t stop, I will take military officers, Yankee military officers from the North that we captured and put them in houses. And when you bomb, you don’t know if you’re going to kill your own forces.” Okay? And in this script, in this whole correspondence that begins between these two generals, the black people in the city, which, as I said, are half the population, don’t even figure in the conversation, and the women and children cannot be human shields because they too are not fully human. It’s the officers, which is a certain social class in the United States at the time. They become the shields. And supposedly it’s their humanity, it’s kind of a politics of vulnerability. Their humanity, their flesh and blood becomes a kind of deterrence so that the other side will not strike. So we have this politics of vulnerability through the recognition of the other as human. And that supposedly is meant to deter me from firing.
Now, what is a human shield in international law? It’s the use of a human to protect a legitimate military target. So you become a human shield, not in a protest like in the fence protests that preceded what is happening now. Israel claimed that Palestinians were using human shields in the protest. There couldn’t have been legally human shields there because there was no legitimate military target there. It was civilians protesting. So, what Israel’s use of human shields is exactly what we say is the legal definition of human shields. They are…Israel, the IDF, the Israeli military, is a legitimate military target, and so they use Palestinians. They tie them, they put them in front of them, and then go. They did a few other things we might want to talk about, which are different and we’ve never seen in history. But generally, this is what Israel did in order to kind of deter attacks against Israeli forces.
This perception of what human shields is begins to change after the launching of the war on terror. And we see it both in the Gaza Strip, we see it in the civil war in Sri Lanka, and we see it in Iraq and in other places. Basically, what happens is that the proximity of civilians to fighters is what makes them human shields. There’s no agency involved. Let’s say you’re a fighter and I’m a civilian and I’m now sitting beside you, I become, according to this interpretation, a human shield. You’re not using any agency to coerce me to be here. I’m not using any agency to volunteer to sit here. It’s just our proximity. And what happens in urban fighting is that combatants and civilian population are co-located and constantly intermingle. And so basically, these state armies are now categorizing the civilians in such situations as human shields.
But we had a natural experiment. And the natural experiment that led us to understand something else about this phenomena happened in Mosul in Iraq. In 2014, ISIS captures Mosul and the Iraqi army is sitting inside Mosul. ISIS comes in with their troops and they capture Mosul. And you look at the press and the Iraqi army flees. And you look at the press, there’s no mention of human shields. [In] 2016, we have a reverse situation. ISIS is sitting in Mosul. The Iraqi army and the coalition, the US coalition come in to retake Mosul from ISIS. And suddenly, everyone is saying there’s 100000 human shields in Mosul. And it’s not… by everyone, what do I mean? It’s not only the US army or the Iraqi army, I mean Amnesty International, Human Rights Watch, and different UN agencies. Now, so what we learn from these learned from this natural experiment is that it’s not merely this proximity between me as a civilian and you as a combatant, because if you were an Israeli soldier, our proximity doesn’t make me a human shield. If you are a non-state actor, a non-state fighting, that’s when our complicity makes you into a human shield.
So, in a radius of one kilometer or two kilometers from the Kirya in Tel Aviv, you have 20 kindergartens. Hamas bombs Tel Aviv, hits a kindergarten, let’s say, near the Kirya, and then it would say, “Oh, they were acting as human shields to the Kirya.” Who would accept this kind of accusation of Hamas? But that’s what Israel does all the time in terms of Hamas. Now, the Mosul example teaches us a lot of things. It teaches us how race enters. So if we did a study of the appearance of human shields in popular press, and if you look at the map where there were accusations of human shielding in this kind of proximity, kind, and proximity shielding is now 99 [percent] of human shielding accusations. It’s not me grabbing you and using you as a human shield, it’s our proximity. So it’s 99 or 98 [percent] of all human shielding accusations is this proximity. And almost all of them take place in ex-colonized countries. Okay, so it’s brown people that are being accused of human shields. Now, this relates back to your first question of international law. International law was not applicable to the colonized. So when the colonizer fights the colonized, they didn’t abide by any rules of war and they could just slaughter and massacre as they will, and that’s what they actually did, and we know that.
Come the decolonization process, and all these ex-colonized countries become part of the family of nations and then they become their civilians, become civilians with protections. So, how can you justify the killing of civilians after they join the family of nations? Human shields become a major tool through this proximity logic. And the claim in the law is let’s say you are a guerrilla fighter, you’re next to me, I am shot, I am killed, I’m a civilian. The claim will be that you used me as a human shield. To use a civilian as a human shield is a war crime. You began the process of criminality, so ultimately, you, maybe Hamas, Islamic Jihad, are to blame for the death of civilians in Gaza.
Now, in Gaza, we saw two, three new things in this Gaza war. First, we saw the idea of how the, the whole Gaza Strip becomes one big shield. And the logic to that is twofold. One is this kind of proximity that through co-location and intermingling, and so any place that there’s a Hamas, or supposedly there’s a Hamas fighter and there’s a civilian, that’s a situation of shielding according to Israel. But in Gaza, we also have what are presumably hundreds of kilometers of tunnels. The tunnels are a legitimate military target. So anything above the tunnels becomes a shield. And that’s where the information infrastructure, the hospitals, the school. So we have all the hospitals are targeted, all the schools, 85 percent of the schools have been wiped out, all the universities have been wiped out, almost all the hospitals have been wiped out. Again and again, the shielding argument becomes the argument of justification for this. And so we see how a whole area can become a massive human shield, and how Israel, both in the ICJ, when their legal team came to claim that it’s not a genocide, and I’m sure we’ll see it in the future more and more, and we see leaders, we see Israeli leaders repeating this claim. We see Biden repeating these claims. It’s full in The New York Times. Everyone is regurgitating this false claim of human shields, and it becomes a justification for the killing of civilians.
But in Gaza, it becomes even more so, because if we think about it, the laws of war as we know them today, yes, they have a long history, but ultimately the major instruments we have are the 1949 Geneva Conventions and the 1977 Additional Protocols. The 1949 Geneva Conventions were drafted as a kind of outrage to the second World War, the Holocaust and the genocide carried out against the Jews, against other groups as well. And the idea was how are we going to ensure a never again? How are we going to ensure the protection of civilians? So now, what we see in Gaza is how Israel is using that same body of law that was created to offer more protections to civilian populations, civilian objects like hospitals and schools, and to ensure that there is no genocide again, how that law is being used to justify a genocide. And so, if Israel succeeds with its interpretation, we have basically the complete undoing of the international legal order. That’s what’s at stake here. It’s major.
Dikla Taylor-Sheinman
And what becomes of the concept of Palestinian civilianness in all of this? If all of Gaza is essentially one [human shield].
Neve Gordon
So, if you look at the Israeli press and how the Israeli press, and here I’m talking about television and digital media and social platforms, one of the tropes that emerges right in the beginning of the attacks on hospital emerges most infamously by President Herzog when he basically says there are no innocent civilians in the Gaza Strip. And the trope is that there are no uninvolved civilians. And so what is no uninvolved? Supporting Hamas’ ideology is not a crime, according to international law. You can support different kind of political parties with different political ideas, so that doesn’t make you involved. In any way, civilian becomes really a participant in those only when they directly participate in hostilities. So, how do you kind of justify there is no uninvolved civilians and therefore everyone is killable? And the major justification becomes the human shielding justification. They either volunteer or they are used by Hamas as human shields, and therefore, first, the repertoires of violence that can be used in a civilian area can be relaxed, and the blame when civilian areas can be relaxed, and the blame, once they are killed, can be shifted from the killing party to the party that uses them as human shields.
So, what we have to keep in mind is that this is really racialized through and through because the arguments that Israel is making and that ring true in the ears of people like Biden and certain New York Times op ed writers like Brooks and others work only because Palestinians are brown and Palestinians are mostly Muslim. If it was Ukrainians, for example, and actually Putin and his different generals tried to make similar claims against Ukraine when they bombed and killed civilians, but they got no traction in Western media and it was laughed about. But when it comes to Palestinians or more generally to people in the Middle East, this becomes a trope that gains a lot of traction and is very convincing among different publics.
Dikla Taylor-Sheinman
I want to talk about another legal category that we’ve spoken about before, which seems to similarly undermine the concept of civilianness, and that category is the unlawful combatant, which Israel has used to imprison thousands of Palestinians since October 7, though, of course, it made use of this detention framework in Israel’s earlier assaults on Gaza going back to 2008. And the legal framework started to apply to the strip in 2005. But can you tell us a little bit about where this category comes from and what Israel gains from designating somebody as an unlawful combatant rather than treating them straightforwardly as a prisoner of war or a civilian detainee?
Neve Gordon
The laws of war have two central figures, one is the civilian and one is the combatant. And the laws of war are different from human rights law. One of the differences between the laws of war and human rights law is that in war, it is legal to kill, there are certain situations where it is legal to kill. For example, if I’m a combatant and you’re a combatant on the other side, it is legal for me to kill you or vice versa. It is illegal for me to kill a civilian. And the whole laws of war, maybe the major principles of the laws of war, the bedrock, is this distinction between the civilian and the combatant. And each one of these major figures has a series of protections and maybe rights or privileges that are connected to it. So, as a civilian, I cannot be targeted. As a combatant, you can be targeted, etc., etc. Now, as I mentioned before, the laws of war are treaties that are signed between states. So, the idea is let’s say I’m a combatant and captured, so I will become a prisoner of war. And as a prisoner of war, as a combatant, a prisoner of war, there’s certain privileges and rights that I get that an unlawful combatant wouldn’t get. One of them would be that as a combatant, it was legal for me to kill, and as an unlawful combatant, it is not.
Now, where does it emerge? We can easily trace it back to the Lieber Code, [which] was one of the first kind of drafting of the laws of war during the American Civil War, where Lincoln asked a professor at Columbia College at the time to draft what is allowed and not allowed in this Civil War. He uses a phrase called the irregular. Now, what is the irregular? The irregular is the partisan. The irregular is the guerrilla fighter. The irregular is the terrorist. The irregular is the freedom fighter. The irregular is the fighter that is not fighting at the behest of the state. Any fighter that does not fight is an irregular, and in today’s parlance, it becomes the unlawful combatant. Now, think about it. Most countries that exist today, or I don’t know if most, but many countries that exist today emerge through liberation wars and people’s war, where the whole idea of a state combatant didn’t really exist because it was before the state, or if It existed, they were unlawful combatants. Okay? Now, the unlawful, they were the guerrilla fighters, they were the freedom fighters, they were the liberation fighters. The American Revolution is a people’s war against the English colonizer. You can see that everywhere. It’s always a people’s war. Now, people’s war goes against the primary distinction of international law civilian and combatant.
Now, enter into that also the one that does not fight on the behest of the state. And remember from from Weber that the state has the legitimate monopoly over the use of violence. Anyone that is not at the behest of the state becomes illegitimate. That’s where international and and the domestic come together. And so we define, Israel basically defines all the fighters in Gaza or in the West Bank, or or Hezbollah as unlawful combatants. That’s a good definition. Usually they’re defining them as simply terrorists, right? And so unlawful combatants do not get the privileges and the rights that a prisoner of war would get. And in reality, what that means is that certain processes, judicial processes, that the law ensures that prisoners of war will have are not provided to unlawful combatants. And so we have, for example, people that can sit for years without any trial. They can be with months without seeing a lawyer, no family visits, et cetera, et cetera. And this allows you, in a sense, to put this person in a kind of no law land where you can do with them more or less what you want to do.
And in Israel, what we saw happening is a certain addition to, let’s say, what we saw happening in Guantanamo Bay, where the US basically captured all these people, classified them as unlawful combatants, held them in jail without trial for years. But what we know from Guantanamo is that in 20 years in Guantanamo Bay, nine prisoners died. We have two years, two and a half years, over 104 Palestinian prisoners have died, while basically the whole prison population, I would say, or almost the whole Palestinian prison population was deprived of food. There was even a child that died of starvation in prison, and every single one of them was probably tortured this way or that way in the prison process. And we also know, and I’ll just add this, that the medical profession in Israel backed this up through the doctors working in the prison systems. So we have this whole apparatus, and it’s also related to the concept of unlawful combatant because that unlawful combatant cannot see their lawyer, cannot tell the lawyer what’s going on. It is basically in a tortured dungeon for months on end without knowing what’s going to happen.
Dikla Taylor-Sheinman
The anti colonial history behind the rise of this category is something that’s quite fascinating to me. You mentioned that kind of national liberation movements fought successfully in the 1970s, I believe it was 1977 when they added the protocols to the Geneva Convention. They fought successfully to change international humanitarian law so that wars against colonial domination, alien occupation, and racist regimes would be recognized differently under the Geneva Conventions. So, how do we understand or how should we understand the emergence of categories like the unlawful combatant in the decades after that victory?
Neve Gordon
The additional protocols, there was one success, and that is the success you just mentioned. And it was that moment, and since then, we see this kind of erosion, I would say it’s of the civilian and of the freedom fighter or the guerrilla over the years. And so while unlawful combatants were used by the US in the Vietnam War and was used by other countries in their colonial endeavors, we see a real reemergence of the concept following the launch of the War on Terror. And so the kind of terrorist, quote unquote, becomes the unlawful combatant, and it basically is a legal classification that provides a certain kind of legal toolkit that allows the state to do as it wishes with these fighters. Now, we have to understand that if we look at Zionist history, then Lechi, Etzel, Haganah, Palmach, they’re all unlawful combatants. Okay? They’re all unlawful combatants. And of course, the Palestinians that were fighting in the 1936-39 rebellion were unlawful combatants. The unlawful combatants is the one that’s not fighting at the behest of a state, it’s anyone that can be categorized like that. And so, what we see with the war on terror progressively developing is this kind of delegitimization of any kind of non-state rebellion, whether some of it is terrorist, whether it is terrorist, or whether it is a bona fide liberation struggle. It’s all the same from the perspective of the states. It’s all terrorist. It’s all kind of. But we also see at the same time, and that’s where the human shield enters, this complete erosion of the civilian, also. This category that was supposed to offer protections no longer really offers protections, and it’s legal tools in both cases that are used to do that. And that’s where this kind of complication of international law that you began asking me about emerges, right? In these little things, you see them, and legal work is interpretive work. So you bring in these legal teams from the Israeli military, and they do their acrobatics and they try to convince the judges that everything Israel has done is legal.
So, when we’re thinking of the genocide in Gaza, obviously the people most responsible are the people at the helm, the politicians and the military, the highest echelon in the military. But after that, most people will go after the infantry because that’s the kind of pictures they see of Gaza of these soldiers doing these horrific things that are definitely war crimes. But the vast majority of civilians were killed by two groups. One is the lawyers that legitimize the attacks, and the other is the pilots. And these groups are loved by Israel. Every mother would want a lawyer as a son, or a pilot as a son, or daughter or whatever, and these two groups were part of the elite of Israel society are now really bear a major responsibility for the genocide in Gaza.
Dikla Taylor-Sheinman
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It’s interesting also how these two characters both the concept of human shielding and human shields, as well as the unlawful combatant, are sort of working on two different fronts, but are essentially achieving kind of the same goal of putting the Palestinian civilians sort of outside of the law. Like one, the human shielding accusation, it works when we’re talking about Palestinians who are under bombardment or who are just in the line of fire, and the other works in the legal context applies to Palestinians who are in detention.
I wonder if maybe we can set aside the topic of international law for a second and we can move to the human rights and the discourse of human rights, but the human rights that international law is supposed to uphold or safeguard. One of the arguments that you and Nicola make is that at the turn of the millennium, kind of late 90s, early 2000s, conservative political forces that had traditionally been hostile to human rights began using its languages or its language, so that includes settler organizations as well as right wing groups. And when I think about this in the context of stories that I’ve reported, I think immediately about the battle over archaeology in the West Bank, for example. So you find settler organizations who simply want to steal Palestinian land, accusing Palestinians who live in Sebastia or Nabi Samuel or Silwan, not only kind of neglecting the antiquities in their midst, but also of posing an existential threat to so-called Jewish heritage sites. This is something that the NGO Emik Sheveh has documented very well. Any sort of political discourse can be appropriated, but I wonder if you think that there’s something particular to the discourse of human rights that makes it especially vulnerable to this kind of co-optation, or maybe you don’t even think it’s co-optation.
Neve Gordon
So, again, if we begin with the layperson understanding of human rights, human rights are considered tools of emancipation and liberation. Our book is called “The Human Right to Dominate”, so its underlying claim is that human rights can also be tools of domination. I want to begin with what we begin with in, I think, the introduction or the first chapter, and it’s about, again, the kind of protections that are involved in human rights. So, human rights again emerges as we know it today, I would say, following the Second World War with the Universal Declaration of Human Rights and with this kind of outrage of what a country like Germany could do to its own citizenry, to its own, to the people under its control and then under control in other countries, but in its own citizenry.
And so, we have the state, in this case, it would be the German state, and it is a major violator of human rights. And the whole idea of the Universal Declaration is that we need to offer these people protections. So we need to protect the civilians or the humans from a series of violations. And the Universal Declaration basically lays out these rights, and it’s an amazing document in many ways. One cannot deny that. And so it provides a whole series of rights that the civilian is protected and it needs to be protected from the state. But who is responsible for protecting these rights? It’s often the state itself. So we have this kind of situation where the state is the major violator of rights and the state is also the major protector of rights, but also the human rights we claim protect the state itself in the sense. That a state that protects human rights has certain kind of legitimization and that becomes a protection of the state. So we have this kind of very complex relationship with the state where human rights are in bed with the state, which is usually the biggest violator of human rights.
But we also know that the notion of the universal that underlies the Universal Declaration of Human Rights, the very notion of the universal, is never a reality. It’s always maybe a promise, but in reality, it’s always contaminated. It’s contaminated by the particular. Now, this is kind of high language to say something very simple. And what do I mean? So, for example, one of the rights in the Universal Declaration, I think it’s Article 16, is the right to have a family, right? And so, what is a family? And the Declaration defines a family in a very certain way that excludes many families that one would want to think of, or I would want to think of as families, maybe gay families, you know, different models of family. A family is an artificial construct, and the Universal Declaration uses a certain construct and universalizes it, claims that it is universal and protects it. But by protecting that artificial contract, it excludes others. And so every universal is always contaminated by the particular. That, I think, is my underlying assumption about human rights.
Now, what we see historically is that there was the high moment of human rights, which begins in maybe the 70s, 80s, and 90s, and that’s where human rights gain a lot of traction, particularly in the Western world. The right wing are looking at this and they say, this is a great tool. The liberals are making headway using this tool. Why don’t we use it as well? And so what we see in the context of Israel Palestine is that, for example, the Association for Civil Rights will file a Supreme Court petition against maybe some kind of dispossession or confiscation of land, and the next day another rightwing organization, maybe Regavim or any other organization, will come up and basically copy the petition that the Civil Rights Organization gave, change the names, change the locations, turn it upside down, and basically talk about how their land is being confiscated by the Palestinian outposts. There’s a kind of inversion, there’s a mirroring of strategies between the right and the left, and an inversion where the violated becomes the Israeli settler. And the question is whether this inversion is a perversion, whether it is perverse, whether they are instrumentalizing human rights in a way that human rights doesn’t lend itself to. And that is the argument of the liberals. But my argument is a bit different. My argument is that the law, as I said before, is an interpretive tool, and they are interpreting human rights in one way, and the liberals are interpreting them another way, and it’s a struggle of our interpretation, and that’s what the law is. Okay, and so they’re doing a certain kind of legal work where we might not like it, but they’re using the same toolkit to advance diametrically opposed ends.
And yes, their concept of the universal is clearly very, very limited. The Jew is the universal, it’s not the human, it’s the Jew, and that is really integral to the whole Zionist project, too, where the Zionists rejected the universality of human rights following the second World War and chose this kind of nation state project as the solution against the pogroms and against the genocide carried out against the Jews.
Dikla Taylor-Sheinman
There’s an even more contemporary parallel to this process of, you call it mirroring or inversion in your book that occurred to me while I was thinking about this, like what settler groups like Regavim do, or the ones that, as I mentioned earlier, are sort of trying to acquire Palestinian real estate in the West Bank, but like through weaponizing antiquities. But I wonder if you think that this parallel holds. So I immediately started thinking about the language of identity politics, which we could say emerged in the 70s and 80s to think seriously about issues of discrimination and marginalized groups. And increasingly, what we’re seeing both in the US and I think in Europe as well is that Zionism is coming to be treated as something akin to an identity category such that opposition to it whether it’s expressed in a protest, in a workplace, on a campus, is treated as a form of discrimination. I also think about the Trump administration’s multi-agency task force investigating incidences of so-called campus anti Semitism, where they look at, you know, they’re particularly scrutinizing departments of history and Middle Eastern studies, departments that deal principally with the question of Palestine and Palestinian history. Do you see these as related processes? Like, is this another example of the political right kind of learning to use the language of the liberals? And that language was developed, you know, to challenge domination, but it’s now being repurposed to sort of insulate this dominant political project, being Zionism in this example.
Neve Gordon
I’m not sure I’d give the liberals the amount of credit you give them here when you pose the question that the liberals are about domination, too. I think what is going on here, there’s certain categories that are recognizable in different settings. So, the idea of citizenship and the idea of nationality and so forth. What the Israeli governments is this is not, I mean, Netanyahu does it for sure, but it was done way before Netanyahu. One of them has tried this conflation of Jewishness and Zionism. And if Zionism is Jewishness, then any attack on Zionism becomes anti-Semitic But as to your question, I do think that we see this kind of appropriations. And language can always be appropriated. I can say things here, and I’ll mean one thing. The message I’ll want to get across is one thing, and it can be used and taken and reappropriated and used in very different ways, and I think that this whole kind of identity politics is being manipulated in many, many different ways as forms of identification. Therefore, it creates certain situations and certain emotional experiences among certain publics that I would say are fantastical or weird, but they really experience them. I’ll give you maybe an example or two. So, first of all, of the Palestinian flag, the kind of encounter of a Jewish Israeli Zionist with the Palestinian flag, the flag is a threat. They feel it as a real threat. What they don’t understand is that their feeling is socially constructed. So, their emotions are socially constructed through this whole education propaganda that’s going on in Israel. And therefore they experience criticism of Israel, criticism of Zionism as antisemitic, when in fact it is a political criticism against a regime that is carrying out genocide, that is violating human rights, that is doing this whole thing is a very legitimate kind of criticism. So if I teach the apartheid reports, let’s say Amnesty International or B’Tselem’s apartheid reports In my LLM class at Queen Mary University, it could easily be that a Jewish student in the class will think of this as offensive because the IHRA is one of its illustrative examples says that saying that Israel’s a racist endeavor is antisemitic their emotions are socially constructed. And they can experience studying this report as an antisemitic and that’s where the identity politics comes in because identity politics is not natural. It is itself a social construction, and Israel wants to construct it in such a way that any criticism of its government, of its actions, which are outrageous, is antisemitic. And that’s how it has been working here in the UK and elsewhere in Europe and in the United States.This does not mean that there aren’t people that criticize Israel that are also anti Semitic. There might be an overlap there. But criticism of Israel, criticism being an anti Zionist as such, is nothing related to anti Semitism.
Dikla Taylor-Sheinman
Maybe we’ll briefly move from the discourse of human rights and identity politics to the organizations that use it. So today you’re an academic and an activist, but that being said, the world of professional human rights advocacy is not foreign to you. You were the first director of Physicians for Human Rights – Israel, I believe, during the First Intifada. So when you criticize the professionalization or the legalism of the human rights world, you’re also talking about a political tradition that you participated in. And I’m wondering what kind of changed in your own thinking about what this kind of advocacy could accomplish. You alluded a little bit earlier in our conversation to Israeli human rights organizations’ appeals to the Supreme Court. I wonder how you’re also thinking about the kind of persistence of these efforts today. So maybe we’ll start with the 90s and then we’ll move on.
Neve Gordon
Yeah, I mean, I began as a believer in the human rights, and I’m constantly changing my views. Let’s begin with that. And I don’t see that as a bad thing. I think we need to learn, we need to practice and learn, and if need be, change. What human rights has become in the 70s, particularly, so we don’t see it in the civil rights movement in the United States, it’s this kind of NGOization. And so we have groups of organizations, these non governmental organizations that become experts in different fields. We have a human rights organization for the occupied territories, or human rights organizations for medical issues, a human rights organization only for citizens, and human rights organizations for the Palestinian citizens, and so forth. And in each one of these, there’s, or maybe not in B’Tselem, but in most of these, we have the lawyers, and the lawyers are considered the experts. They read the law, they read what the human rights law is, and they become the experts, and it becomes a kind of tool, a strategic tool of struggle for supposedly bringing about social change. The objective is to bring about social change.
So, first of all, I mean, one test we have to begin with, okay, I began in the 1990s, has the human rights of the Palestinians improved since the 1990s or has it’s a test. I mean, I’m not saying we can’t argue against this test, but it’s a test, and obviously it has not. Things have deteriorated. Is this because of human rights? They will tell.. the Human Rights Act practitioners, will tell us no, other things were going on. But what do the human rights do? I talked in the beginning about this methodological eventivism of international law. Here I will talk about the case. Human rights law is primarily a case law in the sense that someone abused your right, you will come to me as your lawyer, and I will try to defend the right that has been violated. Now, there’s a kind of individualization of the struggle there because the right that has been breached, Your right that has been breached, most likely a structural issue that is breaching the same right for many, many people. But instead of organizing them as a collective and trying to kind of use political tools to change the structure, I’m giving you a band aid. I’m solving your problem. Maybe, so if we look at the kind of separation barrier that Israel built in the West Bank has taken five dunams of your land, and I will represent you, and I’ll manage to get Israel to move the wall a few meters west, and you’ll get back three and a half of the five dunams. But the wall is being built, so we have this kind of individuation of the struggle, which I think is counterproductive to social change. We have the rule of experts only the lawyers know. They are the lawyers, while often I think the people that are subjected to the modes of oppression know much more, and therefore we should go to them to think of the ways of resistance and not bring this way of resistance. It is, after all, the master’s tools, and the master’s tools will not undo the master’s house.
But then in the Israeli context, we have something else. We said always, that you’re going to the state that violates human rights to defend these human rights. But here we’re going to a colonial court that has again and again basically demonstrated that it is one of the major defenders of the colonial project. We’re going to that court asking for some kind of emancipation, liberation, and protection. And going to that court legitimizes the state. We talked about human rights as a tool of legitimizing it, it has a process, it is doing everything according to the rule of law, and so forth. And so we see how the Israeli Supreme Court, which in the international arena for years was considered a major court that people looked up to, this court that everyone looked up to is a colonial court that justified assassination, justified for years torture, justified dispossession, in a word, justified colonialism. And so that is in itself extremely problematic. And I consistently speak with many of these organizations in Israel. I’m not saying never, because there could be a situation, but usually I think going to the court actually weakens our struggle rather than strengthens it. And so I do not think it’s a tool within the toolkit that we have that we should use. If at all, I would use it very, very selectively. We have to think, there are so many discourses of resistance. Now, clearly, human rights is not a successful discourse of resistance, but there’s a certain laziness here because it is the one we have now. And why should we invent something else, right? And so I think it’s high time that we start thinking of alternative discourses and strategies of resistance to the human rights one.
Dikla Taylor-Sheinman
This is precisely what I wanted to ask you about is kind of what a different relationship between human rights advocacy and political struggle could look like.
Neve Gordon
First of all, I would say that the language was kidnapped, was hijacked by the lawyers. We need to take the language away from them. And then the kinds of interpretations and the kind of uses of that language might be good, but it might not be a good idea either because the whole rights language is flawed, I would say, at its core. The language of human rights basically tells us that we need to understand the human subject as a kind of independent person. Children receive certain kinds of rights because they’re considered dependent, and the aspiration is to become a dependent person. Now, independence is a fiction. All human subjects, even the wealthiest white man, even Elon Musk, everyone is dependent on others. What constitutes the human condition is interdependency. It’s not a relation of moving from dependence to independence. It’s about changing the structures of interdependency. So between Israelis and Palestinians, it’s not that one is dependent and one is independent. It’s that there is a structure of interdependency between them that’s a structure of complete domination. Our objective, in my mind, is not a move from dependence to independence, but about saying, the structure of interdependence, completely changing them. And in relations in the world, even outside the Israel Palestine context, that is how we need to think about it. I don’t want to achieve a certain kind of independence from the world. I am dependent on you. I am dependent on so many other people. I’m also dependent on the planet. So it’s also human rights is a human centered conception.
But if we are starting to think beyond the human, which is, I think, we have to, given I mean, just open your news and see what’s going on everywhere in the world, we have to think about our interdependence with this planet and how do we change the kind of structure of interdependence we have with the non human, too. Human rights gives us no tools to do this. What they’re trying to do now is give rights to rivers. So I can see where they’re coming from, but it’s a way to try to save a language that is really no longer useful in terms of political change. We need to think outside the box. We need to be more creative about how we think of things and not an attempt to achieve this kind of independence.
Dikla Taylor-Sheinman
As we come close to wrapping it up, I just want to briefly revisit this danger that you sort of articulated with respect to human rights organizations seeking redress at Israel’s Supreme Court. Because over the last few weeks, there have been a few developments that I think are worth talking about. First of all, just this week, Israeli prosecutors indicted 12 prison guards on charges of reckless homicide over the November 2023 death of Palestinian prisoner Tha’ir Abu Asab at Ketziot, who was beaten in response to asking guards if there was a ceasefire. And then a couple of weeks ago, the Israeli military announced that it was opening criminal investigations into two particularly notorious cases from Gaza, the first being the killing of Hind Rajab and her family in January 2024, as well as the killing of 15 Palestinians medics and rescue workers in Rafah last year. So, we know, as you’ve said, that these investigations rarely result in any sort of accountability, but also Israel’s capacity to investigate itself is enormously important, legally speaking, including to arguments about whether the international courts should intervene. What does the existence of this investigative machinery actually do for Israel, both domestically and internationally, even when there is an indictment, or somebody is found guilty, right, the punishment doesn’t fit the kind of gravity of the crime.
Neve Gordon
All three cases that you mentioned are cases that were brought to court and then will be or were ruled about as a legal defense of Israel. And all the other people that committed crime — it’s not about finding people that violated human rights that could have committed war crimes. All you have to do is look at your neighbors and you’ll find one of them. If we look at the Hind Rajab case, Hind Rajab is a very well known case, but there’s 20000 other children that are Hind Rajabs in Gaza. And so what Israel is doing is looking at publicized cases that there’s very clear evidence, overwhelming evidence of violation, choosing a handful, bringing them through the legal procedures, giving the people that carried out the crimes relatively light sentences, and then when the time comes, the International Court of Justice or the ICC or other universal jurisdiction courts will emerge and ask Israel will use what is called the complementarity issue in international law that if it has a functional judicial system and it carried out investigation, then that rules out the ability of international legal fora from investigating and examining Israel. So that is the strategy. Again, a strategy that was devised by the Israeli lawyers who are not really, that are working with the military, are not really concerned….Palestinian lives, as they would say, do not really matter for many of them or most of them. What matters is the defense of Israel, and so it is a kind of very particular way of choosing cases according to different criteria that later will enter, if need be, the legal defense system of the regime. So, it is about maintaining the regime, showing the world that we had the legitimate judicial process, that we are doing the investigations, and it’s all a lie, it’s all a sham. And of course, the courts themselves here play a central role. And they are a central tool. And that’s why we’re heading now towards election in Israel, and maybe it’s important to mention them. That is what we see. We don’t have rotten apples in Israel. It’s not about rotten apples. It’s not about settler terrorists. It’s not about Netanyahu. It’s not about…it’s about a regime and the whole structure, the way the regime is structured. And again, if we go back to interdependency, the whole regime is structured on a structure of a domination of relations of interdependency. And the different organs of this regime, whether it’s the judicial order, whether it’s the media, whether it’s the executive branch, whether it’s the legislator, they’re all in cahoots in this. And so they all maintain this structure. And sometimes to maintain this structure, you need to do these strategic cases. It’s about maintaining the structure of domination, these legal cases. They are not about liberation, they are not about justice. It’s about domination.
Dikla Taylor-Sheinman
Perhaps we can end where we started with South Africa’s case at the ICJ. Quite recently, late in August to be specific, South Africa brought its genocide case against Israel back into the headlines because they submitted a substantial dossier to the International Court of Justice documenting Israel’s failure to comply with the court’s orders to protect Palestinians in Gaza. So, given everything that we’ve discussed today — the capacity of international law to be appropriated, the limitations of the courts, the professionalization of human rights work and advocacy — what should Palestinians and those struggling in solidarity with them actually seek from international law?
Neve Gordon
I think they should seek a ruling that finds Israel at fault with carrying out or as breaching the Genocide Convention, breaching the Rome Statute, and so forth. Obviously, they should seek that. But also, I think it is obvious, just as obvious to me, that the law will not set them free, the law will not liberate the Palestinians from the yoke of colonialism. And so, it is not as if tomorrow morning the ICJ would rule that Israel carried out a genocide, there still would not be Palestinian liberation. And I think to me that’s obvious. And so, we need to think of new modes of collective action and solidarity. When people ask me, what should they do? I say, each person needs to create their own story, and we need to create more and more stories, and one day these stories will come together. And the legal story at the ICJ and the courageous work, I have to say, of the South African delegation, because the kind of pressure they received from the United States and other Western Countries not to petition the court and later, when they wanted to repetition, there were more pressures and so forth, and I’m talking major, massive pressures that most countries in the world would bow down to, they did not bow down to. They went to. It is one path. It might lead to something successful. It might fail. It’s not clear. But what is clear is that this is one story. And without thousands of stories, we’re not going anywhere. And so I think every single person needs to think what they can do, what is their comparative advantage, what they can do on the local level, where they live, in their community, because we need collectivity and we need solidarity.
And the ICJ is about maybe solidarity with the Palestinian people, but it’s not about collectivity. And we need to make this kind of collective. Now, we are in a moment in history that the elites have lost the common sense, not in Israel, but in Europe and in the United States. The common sense is now pro-Palestine The common sense understands is now pro Palestine. The common sense understands that the Palestinians have been repressed, have been violated for years and years. The ruling class no longer control the narrative in that sense, and they are afraid. And so we are in a moment where we’ve seen, I’ve been around for decades doing this kind. The common sense is now ours. You go in the streets, most people in the streets will agree that Israel is genocidal, that it’s misbehaving, that it’s carrying out war crimes. We need now to continue and continue. And the ICJ is one element of this whole big picture. It’s an important element, but we need to make these thousands of other stories.
Dikla Taylor-Sheinman
Thank you so much, Neve, for giving us much to think about. Good luck with everything. That’s it for The +972 Podcast.
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