Disavowal: Viterbo’s Problematizing Law, Rights and Childhood in Israel/Palestine

by | 11 Apr 2022

Hedi Viterbo’s Problematizing Law, Rights, and Childhood in Israel/Palestine is both a fascinating book and an outstanding scholarly accomplishment. In it, Viterbo deconstructs childhood, the law, court rulings, and the work of human rights organizations in order to expose how childhood has become a form of governmentality.  

Using Israel/Palestine as his case study, the analysis is based on hundreds of files detailing military court cases involving children to which Viterbo gained access (due to an archival fluke), the laws and decrees used both in the Palestinian territories and in Israel, scores of human rights reports, media coverage of certain court cases, and his intimate acquaintance with the political history of Palestine and Israel. 

In the introduction, Viterbo already notes that childhood is neither something that simply exists out there in the world nor a natural category that is merely regulated by law and human rights conventions. Rather, the law and human rights are profoundly implicated in the social production of childhood. 

Viterbo is interested in the particular processes of social production and reproduction of childhood, how this concept becomes naturalized and normalized, and how it is mobilized to advance certain political objectives. He interrogates what the social production of childhood aims to achieve, analyzes the strategies used to accomplish these goals and how these strategies affect the lives of Palestinians. 

Age is perhaps the most salient way through which childhood is produced and regulated. Human rights, for example, tend to conceive the number eighteen as a watershed between childhood and adulthood.  A series of characteristics are then attributed to over and under-18 groups. Under eighteens are constituted as dependent, vulnerable, and lacking capacity; over eighteens are independent, responsible, and able people. These attributes are then naturalized through their very repetition in laws, rulings, human rights reports, etc.

The law often adds a developmental dimension to the social production process, where, for instance, young people under a certain age cannot be held to be criminally liable, while young people over a certain age, say the age of twelve, can be tried for criminal offenses. Yet, the law also stipulates that twelve-year-olds should be treated with a certain leniency compared to people over the age of sixteen or eighteen. 

Such stipulations play an important role in constituting the subject, and Viterbo’s analysis of how they operate helps elucidate the precise ways in and through which childhood functions as a tool of governance. So if mainstream legal and human rights approaches consider childhood to be a legal category which aims to protect young individuals, Viterbo highlights how childhood is also an instrument of management and control that can be used to repress the young people it claims to represent. 

In Chapter 3, Viterbo reveals how in certain judgments young age can actually serve as an aggravating rather than mitigating factor when sentencing Palestinians. Indeed, Viterbo shows how one Israeli judge justified a harsh sentence against a Palestinian child, claiming that it would deter other Palestinian youths from harnessing their innocence as weapons in the service of terrorism. In this judge’s universe sending a child to prison thus becomes an act of protection for other children.

In another case, a judge used a different logic to justify the sentence he gave a Palestinian youth. He argued that Palestinian parents are weaponizing their children and therefore used the Palestinian child as a vehicle to discipline his parents. The logic is straightforward: if I send him to jail for a longer period, next time they might not allow him to protest. The cruel and twisted irony—namely, that he himself might be the one weaponizing youth against adults—seems to have escaped the judge.

Indeed, reading case after case it becomes very clear that the judges in military courts rarely if ever invoke the law to protect Palestinian children, needless to say empower them.

Interestingly—Viterbo also shows how some judges underscore, wittingly or not, the constructed nature of childhood in their rulings by highlighting an ostensible discord between the age of the accused and his appearance, between the temporality and materiality of the body.

The utterance “he is thirteen, but looks more like a sixteen-year-old” can be used to deliver a harsher sentence, but even the opposite is true: A judge can claim that the accused is sixteen-years-old, “but looks more like a thirteen-year-old” to justify a more severe sentence. According to one judge, a young-looking Palestinian was especially vulnerable to unwanted influences and therefore for the child’s own sake he ought to be kept in detention. Detain him to protect him is the underlying moto.

While Viterbo stresses that deconstructing our understanding of childhood can be used to expose the exploitation of young people, as the Israeli case study underscores it can just as easily be mobilized to violate and abuse them.  

But Viterbo’s arrows are not only directed against the military courts; he also criticizes the human rights organizations that take it upon themselves to defend children.

One of the ways human rights organizations operate is by comparing national laws and practices with the requirements set out in human rights conventions. Laying bare discrepancies between the two allows them to underscore different forms of discrimination and abuse. 

The Palestinian organization Addameer points out on its webpages that criminal liability begins at age 12 for both Palestinians and Israelis. However, Palestinians under the military court system are tried as adults at age 16, whereas the Israeli justice system sets the age of majority at 18. While Israeli law and police orders stipulate that children detained in Israel are to be interrogated only by police officers specifically trained for the task, in the West Bank Palestinian children are interrogated by police or secret security officers in situations that are extremely intimidating, lack any real form of oversight and are rife with abuse.

This comparative analysis is the bread and butter of human rights organizations, and Viterbo is well aware of the significance of such an analysis for exposing discrimination and violation. Yet, he sets out to highlight some of the problems and shortcomings of human rights work.

Viterbo shows, for example, how human rights reports continuously emphasize trauma in order to underscore that Palestinian children are at risk. Yet, for the Israeli security forces, the fact that Palestinians are traumatized actually transforms them into a security risk because in their minds the mental illness might lead them to carry out individual attacks against Israelis. This, then, raises the question whether the trauma discourse serves to protect Palestinian children, or ends up constituting them as a threat.

According to Viterbo, the mental health discourse is, however, just one of four frameworks that recur in human rights publications on young Palestinians. The other three revolve around the alleged loss of Palestinian childhood; the claim that young Palestinians deserve special protection by virtue of their supposed “right to childhood”; and the claim that human rights organizations represent the children’s voices.

Viterbo maintains that human rights organizations often fail to take into account the children’s views; they affirm in their reports the provisions set out in human rights conventions even when the children which they “represent” reject these provisions and tell the human rights defenders that they prefer not to be governed by them. 

Consider the separation of incarcerated Palestinian youth from adult Palestinians. Several human rights organizations object to joint incarceration, blaming the Israeli authorities for failing to separate children from adults. One testimony published by the Israeli human rights organization B’Tselem was entitled “12-year-old Beaten and Imprisoned with Adults.” 

Given the report’s title, one would expect to encounter a negative account of joint imprisonment, but as Viterbo points out the young Palestinian makes the precise opposite claim in his testimony:

[The Israeli soldiers] took [me and a fourteen-year-old friend] . . . to Ofer Prison and put us in [a] . . . section . . . which had eighty-three detainees, of all ages . . . The detainees treated us well. They gave us candy, chocolate and potato chips. I felt comfortable . . . A detainee helped me ask for the doctor to treat my leg . . . At first, I was afraid and cried sometimes, because my family was far away . . . The adult detainees took care of me because I was the youngest detainee in the Department, and they decided to make me assistant to the [detainee acting as] sergeant of the Department.

Viterbo provides several examples of children testifying that they preferred being with adults, showing how human rights organizations often ignore this wish. He notes that despite occasionally taking the political agency of young Palestinians into account, the dominant human rights discourse disregards or downplays certain aspects of their experiences, highlighting instead the discourses of trauma, stolen childhood, and human rights which ultimately silence the voices the NGOs profess to render audible.

Three questions stood out as I read Viterbo’s brilliant book. First, I wondered how race plays into all of this, since it seems that the social production of Palestinian childhood is also racialized in concrete ways. We know that the accusation of adults weaponizing children is a trope used to cast people as barbaric, as lacking a basic ethical grammar; but are human rights, and specifically children’s rights, also complicit in these processes of racialization and, if yes, in what way? 

Second, even if one agrees that the inventory of children’s rights spelled out in a number of international conventions are used as instruments of governmentality that might not always benefit children, and if one also agrees with the line of criticism that human rights are racialized and gendered in certain ways or produce an individualized and atomized subject — can we afford to abandon the Convention on the Rights of the Child? Are, in other words, children’s rights redeemable? to echo Ben Golder’s question; or should we put them aside and produce alternative emancipatory discourses?

Finally, is the affirmation of an abstract universal liberal subject not linked, as Lisa Lowe asks, to the forgetting of African slavery, Asian indenture and indigenous dispossession? If the act of affirming an abstract universality is the same one that disavows this violent history, then aren’t human rights organizations also complicit in this disavowal? And, if this disavowal made the abstract universal subject possible in the first place, isn’t its persistence crucial for allowing Israel to continue conducting its violent business? 

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