Hyper-Legality: Viterbo’s Problematizing Law, Rights and Childhood in Israel/Palestine

by | 14 Apr 2022

Hedi Viterbo’s book adds to a growing literature regarding the detrimental role of law in protecting Palestinians and advancing their cause for freedom, more generally. Despite the fact that Israel has launched acerbic campaigns targeting human rights actors and international tribunals as indicated by its accusations of antisemitism against the ICC, its withdrawal from the Human Rights Council, its deportation of the HRW Israel/Palestine Director, Omar Shakir, its denial of entry to the UN Special Rapporteur on the OPT, as well as its recent designation of six human rights NGOs as terrorist organizations, in fact, the law has done little to protect Palestinians at all and more, Israel has used it far more strategically to advance its settler colonial interests. These conditions have prompted practitioners and scholars alike to ask: to what end then is the value of the law? And what work is it in fact doing? 

Hedi answers this question in particular regard to the rights of the child- mostly Palestinian but Israeli as well. Hedi concludes that “Law and rights have thus aided Israel in its efforts to subjugate Palestinian minds, bodies, and interactions…” And his critique equally scrutinizes the state for its violence as well as the human rights community for its advocacy. Using a unique method of combing through hundreds of Israeli military court files, Hedi also notes that the military documents do not reflect a particular reality but rather provide insight on their symbolic and material effects. He explains they shed light on stories “about themselves and the world in which they operate” and speak as much through their omissions to provide a window into a self-perception rather than empirical evidence of an event/phenomenon. In addition to offering a damning critique of hyper legality, Hedi also disrupts legal distinctions between children/adults as well as between children and soldiers thus making radical claims among legal advocates and human rights communities, more generally, for whom these distinctions constitute a foundation of their critique, and more broadly, their world view. In what follows, I would like to comment on three of Hedi’s insightful provocations. 

  1. Outright dehumanization & securitization of youth

The thorough dehumanization of Palestinians through a security discourse is so aggressive that Palestinians can literally never appear as victims. Palestinians even in gestation or infancy is a threat as Palestinian existence, or suggestion of it, is an attack on Jewish life. Hedi cites that today, 96% of security prisoners are Palestinians, 0.2% are Israelis, and the rest are Arab foreign nationals.  I offer that this reflects a settler anxiety. 

Israel’s securitization of Palestinian natives reflects a settler anxiety that has equated its settler sovereignty with a Jewish demographic balance and has driven a policy of racial purity. The threat Palestinians pose is not a physical threat to life or limb but the insistence upon belonging and refusal to disappear. Palestinian youth therefore are already a threat or would-be threats should they be allowed to age. This helps better understand Hedi’s pointed observation that Palestinian youth is actually an aggravating rather than a mitigating factor in court proceedings that seeks to “punish the young and discipline the elders.” 

  • Infantilization of Israeli Soldiers 

Hedi higlights how in contrast to Palestinian children who are securitized, Israeli soldiers of majority age are infantilized – often described as “children” in need of greater protection. Indeed, this condition, wrought not least by the mandatory conscription of Israelis has created even more harm to Palestinians.

In the midst of the Al-Aqsa Intifada, the Israeli Army updated its military doctrines and proposed revising the scope of force protection. This proposal makes the lives of a state’s soldiers worth more than enemy civilians in the calculation of proportionality in combat operations. In effect, it means that more Palestinian civilians can be killed, more reckless force can be used, if more Israeli soldiers’ lives are spared. Its proponents argued that  “A combatant is a citizen in uniform. His blood is as red and thick of that of citizens who are not in uniform. His life is as precious as the life of anyone else…” The shift in force protection is a thorough blurring of civilian and combatant statuses that ascribes innocence to Israeli combatants while simultaneously absolving them of responsibility for harm to Palestinians, The outcome of this almost ensures devastating results for the sake of preserving its soldiers’ lives. A condition we have repeatedly witnessed in Gaza as well as in the many examples of violence shared throughout Hedi’s book. 

  • Hyper-legality

One of the greatest oversights of the advocacy community is not a lack of law but really about whose law. Far from lawlessness, Israel has prided itself on its hyper-legality. In 1982, former Israeli Supreme Court Justice, Meir Shamgar boasted that Israel’s governance of the West Bank and Gaza applied the norms of international law “more extensively and more diversely than most if not all military administrations in this century with regard to both the frequency and intensity of the application of these norms and the duration of time which passed since it was first established.”

For Palestinians, the issue has not been about an absence of legal norms. Hedi highlights this in his discussion of the 2011 amendment that increased the age of majority to 18 and created a separate juvenile court. As he notes, Israel easily availed itself of available loopholes in the law like insisting that the tribunal cannot inform family of charge against child because of national security risk, or that a child’s trial cannot be public and covered by the media in order to protect a child’s well-being. 

This reflects a pattern as the 1999 prohibition on the use of torture by the Israeli Supreme Court demonstrates. Not only did torture continue but between 1999 and 2019, “Not a single one of over 1,000 complaints has led to even one criminal investigation to be opened against an interrogator, let alone a trial, conviction or punishment.” Liberal achievements have effectively provided impunity for torture.  

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