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Plunder Blog! Duncan Kennedy on Gaza.

Duncan Kennedy, one of the most sophisticated legal scholars that the U.S. academia can display has written this important op ed on the Harvard Crimson. Duncan's book "A Critique of Adjudication" has been highly influential in my own thinking about the rule of law and its strategic uses.

Gaza. The Context.

by Duncan Kennedy 


When I told a friend, a former section leader in a large Harvard College course, that I had been offered a chance to do an op-ed for The Harvard Crimson on Gaza, she identified two fairly common, understandable undergraduate attitudes: “The situation is too complicated and I can’t make up my mind about it;” and “This is controversial and there are differences of opinion. No side is ‘right.’’”

I hope that the recent war, occurring at the beginning of the Obama presidency, will lead to enough discussion of Israel and Palestine in the Harvard community so that more of us feel able to take positions. With that in mind, I will use my space to present a factual picture one would think controversial, but which surprisingly is a matter of consensus of “informed observers.”

The Israeli “new historian” Benny Morris—a strong Zionist—has documented the “Origins of the Palestine Refugee Problem.” During military operations in 1947 and 1948 against Palestinian resisters and Arab invading armies trying ineffectually to prevent the creation of a Jewish state, Jewish regular and irregular forces, sometimes using carefully calibrated terror tactics, drove somewhere between 600,000 and 800,000 Palestinian men, women and children from their villages, which they then leveled. After the war, they used force to prevent any of them from returning. Then the new state summarily confiscated their land and property for redistribution to Jews. The remaining Arab population of Israel—now about 20 percent—eventually received formal legal equality, but live in second-class citizen status similar to that of American blacks in the North before affirmative action and the rise of the new black bourgeoisie.

In 1967, Israel preemptively attacked Egypt, Jordan and Syria, and occupied the West Bank and Gaza, largely populated by refugees of 1948, as well as East Jerusalem, the Golan Heights and Sinai (later returned to Egypt). This generated another approximately 200,000 Palestinian refugees who were also forbidden to return. Since 1973, Israeli governments have gradually moved about 400,000 Jewish settlers into the West Bank and another 200,000 into East Jerusalem, appropriating about 50 percent of the land (when roads and other infrastructure are taken into account), taking over the water, and alternately exploiting and starving the West Bank and Gaza economies to the point where the Arab population is overwhelmingly dependent on the international “donor community” for subsistence.

Palestinian non-violent and violent resistance to the military occupation is fully legal under international law. On the other hand, many of the specific tactics, especially airplane hijacking, suicide bombing targeting civilians, including children and old people, and indiscriminate rocket attacks, have been widely denounced as criminal.

The Israeli government justifies the wall, check points, the network of access roads, the discriminatory legal regime, the pass laws, arbitrary arrests, house demolitions, targeted assassinations, torture, and everyday military control as necessary for the security of the settlements (viewed as illegal everywhere but in Israel), and to protect against terrorism inside Israel. The international human rights NGOs such as Human Rights Watch, Amnesty International, the United Nations that have denounced Palestinian terror tactics have unanimously condemned Israel on many occasions for violating the human rights of the Palestinians in the West Bank and Gaza.

After Israel withdrew its settlers from Gaza in 2005, it retained full control of land and sea borders and of the air space. It periodically entered the territory with the goal of suppressing rocket fire aimed indiscriminately at southern Israeli towns. Over the four years before the December 2008 invasion, this rocket fire killed 13 Israeli civilians and made life miserable for tens of thousands of inhabitants of the towns targeted.

After Hamas won the Palestinian legislative elections in 2006, Israel and the U.S. set out to isolate Hamas by cutting off Gaza from the outside world. The justification was that Hamas was a terrorist organization “dedicated to the destruction of Israel.” Israel and its allies persisted in this strategy in spite of repeated indications, reported faithfully in the New York Times, that Hamas, like the Palestine Liberation Organization of Yasser Arafat before it, was looking for face-saving means to alter its position and accept a two-state solution.

The economic and financial sanctions, including stop-and-go electricity and fuel for the people and for institutions like hospitals, along with Israeli restrictions of the movement of goods and persons into and out of Gaza, destroyed what little productive capacity the occupation had left in Gaza. It turned the territory, according to the cliché, into a “prison camp,” where the inmates were dependent on charity and Israeli government whim to keep them precariously one step away from “full fledged humanitarian crisis.” When this did not cause a revolt against Hamas in Gaza, Israel and the U.S., according to an article in Vanity Fair not yet refuted, organized a PLO coup, which failed, and led Hamas to expel the PLO from Gaza. There was eventually a truce between Israel and Hamas.

The Hamas claim, which seems basically sound to me, is that Israel was mainly responsible for its ending: Hamas suppressed almost, but not all rocket fire; Israel retaliated for the residuum by refusing to open the borders, so that Gazan misery continued unabated or worsened, and then carried out an armed incursion in November 2008. When Hamas refused to renew the truce and recommenced rocket fire, Israel invaded.

Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.

Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.

Can this picture be right? If so, what is to be done? If not, what is to be done? If you are not already clear about what you think, it is crucial to try to find out for yourself. If the situation is as bad as I have painted, you might consider some small step, perhaps just a contribution to humanitarian relief for Gaza, or e-mailing the White House, or something more, like advocating for Harvard to divest.

Duncan Kennedy ’64 is the Carter Professor of General Jurisprudence at Harvard Law School.

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I wanted to briefly comment

I wanted to briefly comment on Prof. Bisharat and Prof. Kenney's articles in relation to each other, and what I've gotten from them - both positively, and also what I think are betrayals to some extent of the spirit that compels them. 

Prof. Bisharat makes a passionate appeal for us to 'act'.  While he sees Israel's recent actions as clear violations of international humanitarian law, he recommends that we look past the typical solutions of criminal tribunals and invest our energy into changing the opinion of the international civil society and organizing boycott movements.  Underlying his position, then, is the idea that international law is a useful normative / communicative tool for pointing out unacceptable violence, but that it has been hijacked by major political interests (i.e., US, Israel, etcetera), and therefore, we must organize more populist based economic/non-violent boycotts in the vacuum of state action.  In many ways, to me, this makes a lot of sense - after all, our power of persuasion is probably strongest in our own backyards, and if we can affect public opinion at home, there is the chance that it could lead to a change in national foreign policy.  At the same time, however, Bisharat's position, to me seems to overemphasize the usefulness of intenrational law in condemning Israel's actions - in other words, he doesn't seriously consider Israel being able to use the very same humanitarian principles to mount a successful legal defense, or at least to the degree he considers it, he thinks that any defense would ultimately be in bad faith - in short, he positions the traditional struggle as one between international law (associated with peace, justice, the 'people') versus politics (manipulation, aggression, anarchistic self/national interest). 

Duncan Kennedy also moves away from Bisharat's dicotomy between international law and politics.  For Kennedy, Israel is merely acting as other great powers act, and there is nothing exceptionally criminal in its actions under the rhetoric or traditional logic of international law - international law, in other words, simply does not offer a useful strategy or vocabulary to critique/respond to Israel's actions. 

Yet in other ways, Kennedy and Bisharat sound strikingly similar.  Both call for a shift from 'ambivalence' to 'action', and base it upon the horror that we witness - something that transcends the safety of international legal recourse, and compels us to act in whatever channel we can find, albiet only non-violently. Likewise, they both seem to see our possibility of doing something largely from the role of the 'concerned civil citizen': we are to follow Amnesty's lead and write letters to the White House, we can excersize our rights as consumers and not buy Israel goods, we can give private donations to charities that provide relief to victims in Gaza. 

There is something strangely unsatisfying in this solution.  On the one hand, the call for action feels almost revolutionary, a call to move beyond the ambivalence of the typical detached liberalism that buffers itself from taking strong positions on politically charged issues, in trying to always see 'both sides'.  When we read this, we feel a sense of renewed agency, of expectancy for new ideas about how to strategically intervene politically.  But then, their solutions feel strikingly old-hat liberalism.  We are called upon to check the label when we go out to buy products, we are asked to write a check, or what might take slightly more time, a letter to our elected public officials.  This is all fine and dandy, but it also feels like it has missed the opportunity, the vitality, offered in the recognition that we cannot be perpetually ambivalent, that we must take sides. 

Moreover, we might be suspicious about the practical and theoretical value of these responses.  First off, there is the idea that if people will just recognize what is happening, the horror of the situation, we will be able to convince enough people that it is wrong, that we can basically shame people into action.  Yet, in our world of vicarious pleasure in violence, or even equating strength with doing the shameful (ie, look at Cheney / Bush's seemingly pride in defying international conventions and public opinion), it is unclear that this will have the anticipated effect.  Secondly, the idea that a publicly orchestrated boycott, or individual letters to the White house, make a significant difference, is sort of like arguing that Bill Gates and the average Joe have the same voting power, that there is a meaningful and intimate link between individual public opinion and what government does.  Not buying Israeli goods and writing letters probably at best contains a long-shot chance of meaningful shift in national foreign policy, and it seems likely to me that any of these efforts will not have any continuity - we write the check, and then we forget about it, we get tired of continually checking labels... and while we are starting with Israel, what about all the other products we buy that comes from slave/sweat-shop labor.  The focus on Israel actually may cloud our ability to see it merely as part of a much larger and dysfunctional system of exploitation, and give us a false sense of making a difference.  In other words, the very solutions they propose actually are disloyal to the power of their call to action, and end up reinforcing the larger system of inequality that they propose to address. 

This is not to say we shouldn't give money to relief agencies, or write letters to politicians, or organize civil society boycotts and marches - we probably should in many instances, if nothing else it keeps the conversation alive.  But we should not mistake movement for action, and we should not mistake mainstream liberal calls for reform with more radical agency.  If we who identify ourselves as somehow progressive or part of the tradition or heritage of the 'Left' (in whatever conception we might make of it), if we are going to have any real relevance in politics and truly make a difference, we are going to have to think more seriously about our strategies and adopt a more militant determinacy in our will to power.  The world is not impacted by the letter-writers and conscientious consumers in society, but by those men like Luther, Lenin, and Washington - quite simply, we must learn that power requires not only calculation but risk-taking, and it must be come from the experienced generation to lead by example if they hope to have relevance and impact in the world to come.