Response: Problematizing Law, Rights, and Childhood in Israel/Palestine

by | 15 Apr 2022

I am grateful to Critical Legal Thinking for dedicating a symposium to Problematizing Law, Rights, and Childhood in Israel/Palestine, as well as to the four contributors – Neve Gordon, Noura Erakat, Rawia Aburabia, and Yael Berda – for their insightful and generous comments. The book sheds new light on, and challenges dominant assumptions about, state violence, law, human rights, and childhood, in and beyond Israel/Palestine. Each of the book’s eight chapters examines these issues through a different prism, as reflected by the broad range of themes discussed in the four contributions to this symposium.

Of these themes, two prominent ones are interwoven across the symposium contributions. The first concerns the broader lessons the book offers, beyond the Israel/Palestine context, particularly regarding colonisation and racialisation. The second theme revolves around the question of whether there is hope for human rights generally, and child rights specifically – whether these frameworks can somehow be remoulded, reclaimed, and redeemed. In what follows, I will reflect on the contributors’ comments regarding each of these two themes.

1. Broader insights into colonisation and racialisation

In her piece, Noura Erakat discusses the book’s contribution to exposing how ‘the law has [been used by] … Israel … to advance its settler colonial interests.’ Meanwhile, Yael Berda notes that the book ‘uses Palestine not only as an empirical case, but as a place to make theory from, in order to understand how colonial and imperial methods of control, such as the construction of childhood, and with it the depoliticization of Palestinian resistance, are embedded into the racialized practices of liberal counterinsurgency.’ Focusing on racialisation, Neve Gordon asks ‘how race plays into all of this, since it seems that the social production of Palestinian childhood is also racialized in concrete ways.’

Indeed, some of my earlier work expands on these issues. One of my articles (Viterbo, 2017) lays bare previously unexamined parallels, continuities, and connections between child-related policies in four settler-colonial societies: Israel/Palestine, the United States, Canada, and Australia. A more recent piece (Viterbo, 2021) highlights parallels with yet another settler-colonial context: the predominantly Muslim region of Xinjiang in China (on settler colonialism in Xinjiang, see Clarke, 2022; Roberts, 2022). And another piece (Viterbo, 2018) investigates connections and similarities between the laws Israel applies to two racialised groups: Palestinians and African asylum seekers. 

The book builds on this earlier work, while also developing it further. To mention but a few examples, Chapter 3 traces the origin of Israel’s laws regarding young Palestinians to colonial British law, while also comparing them to laws enacted elsewhere in the British Empire, such as Pakistan, Malaysia, and Cyprus. Chapter 4, drawing on Nasser Hussain’s (2007) work on hyperlegality, illuminates further parallels between Israeli law, past colonialism, and contemporary counterinsurgency globally. Also highlighted in Chapter 4 is how Palestinians themselves, whether in Israeli prisons or in public demonstrations, have discussed and read about other colonial regimes. In addition, Chapter 8 casts new light on Israel’s legal apartheid, by comparing and contrasting state practices concerning young Israeli settlers and their Palestinian counterparts.

Against this backdrop, Neve Gordon asks: ‘are human rights, and specifically children’s rights, also complicit in these processes of racialization and, if so, in what way?’ Indeed, Chapter 1 lays down the theoretical foundations for thinking critically about law, human rights, and childhood. Among the issues touched upon in that introductory chapter are the cultural, historical, and socioeconomic specificity of our dominant conception of childhood, as well as the globalisation of that model through the language and instruments of international law and child rights. Chapters 4, 5, and 7 then demonstrate in detail how this model of childhood, enshrined in international law and the dominant discourse of human rights, has worked to the detriment of Palestinians as well as other oppressed communities across place and time. This disempowering and racialising dimension of childhood, then, is evident in various contexts other than the primary focus of this book.

At the same time, the book repeatedly complicates simplistic notions, some of which relate to the relationship between colonialism, racialisation, and childhood. Such is the claim that racialised, colonised, and marginalised communities – be they Palestinians, young workers in the Global South, refugees, or others – have been robbed of their childhood. As argued in Chapter 5, this narrative is essentialist, romanticised, and, above all, highly context-insensitive. It fails to capture how Israel, rather than denying childhood, has increasingly imposed on Palestinians a harmful model of childhood enshrined in international norms of law and human rights. Another questionable notion associates infantilisation with subjugation and oppression. Although this conflation is understandable – given how non-White groups, the Global South, and others have been infantilised – Chapter 7 explores how infantilisation can have quite different effects, such as where a country infantilises its own armed forces.

In her contribution to this symposium, Yael Berda rightly describes childhood as a colonial and imperial mode of control. However, childhood is not merely a tool in the colonial toolbox. Nor is it only, as suggested by Wallace (1994) and others, a precondition of imperialism. Rather, as argued by Cannella and Viruru (2004), childhood itself is a ‘colonizing construct,’ one that labels society’s young members as deficient, inferior, and uncivilised. Moreover, throughout my book, this colonizing construct is shown to work to the detriment not only of ‘children,’ but of people across the age spectrum, especially members of disempowered communities. Child rights marginalise and silence the young, while at the same time legitimising punitiveness and apathy toward ‘adults,’ especially – in Palestine and elsewhere – toward Muslim men.

Legal scholarship has come to hold an increasingly critical understanding of other identity categories, such as race, gender, sexuality, and disability. Yet, when it comes to childhood, such critical awareness is generally absent, possibly because legal scholars – like most of today’s ‘adults’ – are personally invested in the ideology of childhood (Firestone, 1970; Farson, 1974; Shcnell, 1979). One of the aims of the book, then, is to problematise childhood as a legal construct that is simultaneously harmful to the young and old alike.

2. Is there hope for human rights?

This last point leads me directly to the second theme, recurrent across the symposium contributions. It has to do with whether human rights (and child rights in particular) are, despite their contribution to domination and state violence, somehow rectifiable. As Neve Gordon puts it, ‘can we afford to abandon the Convention on the Rights of the Child? … [Or] should we put [child rights] … aside and produce alternative emancipatory discourses?’ The Convention on the Rights of the Child (CRC), the world’s most widely ratified treaty, is a highly problematic document, yet a full account of its many pitfalls far exceeds this short piece. To mention but one example, the CRC generally defines all under-18s – a third of the world’s population – as ‘children’ and attributes to all of them ‘mental immaturity,’ thereby exhibiting precisely the sort of colonising features I touched on earlier. 

More emancipatory (and context-sensitive) alternatives would require us to radically reimagine both childhood and adulthood. This is, as Noura Erakat observes, part of the challenge posed by the book. In her words, the book ‘disrupts legal distinctions between children/adults … 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.’

Rawia Aburabia, in her piece, wonders ‘whether … we can re-claim this discourse and the discourse regarding the rights of the child. Can we offer a local interpretational framework, suited to the global south, which takes into consideration the power relations and the structural violence of the political situation, working to correct it? Or is decolonialization of the Israeli-Palestinian space necessary before we can free the children from a settler-colonial childhood?’ But while settler colonialism and the Global North-South power relations are certainly at play, the perils of child rights run much deeper. At their core, child rights suffer from what I have called ‘age essentialism’ (Viterbo, 2021) – namely, confining people into rigid age boxes and requiring them to follow constrictive age norms. As noted by Hagestad and Uhlenberg (2005), there is a tendency to wrongly associate ageism exclusively with older age; yet, as demonstrated throughout the book, human rights and international law are ageist towards ‘children’ as well as ‘adults.’

While raising the question of the redeemability of human rights, Rawia Aburabia also describes Israel as ‘hostile … towards human rights discourse and those responsible for advancing it, human rights organizations.’ However, rather than outright hostility, what Israel seeks to do is monopolise human rights, to ensure they serve its interests as much as possible. Accordingly, Israel directs its hostility not towards human rights as a whole but, rather, at those that threaten this attempted monopoly – including those who refer to international tribunals (such as the International Criminal Court) and those who advance unfavourable legal narratives (such as blaming Israel of apartheid or war crimes). 

Along lines similar to those of Neve and Rawia, Yael Berda writes: ‘the more convinced I was by the rigor and analysis of the book, a single question haunted me: what effect does such critique have on lawyers and activists? And how can this crucial analysis serve not to create further desperation and feeling of deadlock but encourage thoughtful and educated engagement in which people both question and reflect about their practices, but do not stop dead in their tracks …?’ There are two complementary answers to Berda’s important questions.

On the one hand, the book certainly outlines some political alternatives. Among other things, whereas human rights actors associate childhood with vulnerability and innocence, Chapter 5 quotes Palestinian ‘children’ who present themselves as fully fledged political actors. According to these young Palestinians, their participation in the national struggle, and their incarceration by Israel, have made them stronger, more self-reliant, politically and socially aware, and more responsible than they would have otherwise been. This discrepancy – between the dominant child rights discourse and young people’s own accounts – is evident across many contexts globally, such as those involving ‘child’ workers (Invernizzi and Milne, 2002), ‘child’ carers (Stainton Rogers, 2009), and ‘child’ soldiers (Rosen, 2007). Chapter 5 lays bare the multiple ways in which human rights actors ignore, sideline, or misrepresent such voices. Here lies one potential avenue for what Berda calls ‘thoughtful and educated engagement.’ Another such avenue concerns the desire of both the state and its human rights critics to segregate ‘children’ from ‘adults’ behind bars. Chapter 4 reveals how imprisoned Palestinians have sought to defy such age segregation by transferring political knowledge from one generation to another. Such forms of cross-generational resistance, too, deserve attention from those who purport to support anticolonialism, in and beyond Palestine.

An entirely different alternative is developed in Chapter 6. The Israeli legal system and its human rights critics alike tend to privilege two forms of evidence of state violence: video footage and state agents’ testimonies. Building on my earlier work on the in/visibility of state violence (Viterbo, 2014, 2019), I argue that alternative images – specifically pictures of absence, reenactment photographs, and sketches – bring to the fore the representation and mediation at work and, for this reason, possess the unique evidentiary potential to highlight the invisibility shrouding both state violence and ‘child’ witnesses.

On the other hand, alongside such potential alternatives, the discussion we are having here also invites us to reflect on the psychological need to ‘redeem’ international law and human rights – as well as the broader desire for solutions. Perhaps a large part of the problem is precisely that legal and human rights actors too quickly pursue solutions, often without taking the time to fully grasp the problems. We know that law and human rights, in their dominant forms, easily lend themselves to oppression and injustice; we also know that they are, all too often, exclusionary and overly technical; and we know that they view the world through one-size-fits-all abstractions and generalisations. Indeed, these are among the issues highlighted in Chapter 1 and illustrated throughout the book. Yet, our conversation here indicates another potential shortcoming: namely, law and human rights are uncomfortable with delving into a problem with no digestible solutions in sight. 

But before solutions can be found, the problems must first be properly grappled with. Rather than promising its readers an easy fix, what the book’s eight chapters seek to do is reveal how and why we have yet to adequately understand the problem(s) at stake. As the book shows, this failure is due both to our misguided conceptions and the incorrect data on which we rely (including not only state publications but also human rights reports and some of the academic literature). By combining critical legal scholarship with critical human rights literature and critical childhood studies, and by bringing these various scholarly bodies to bear on hundreds of previously unexamined sources (many of which are not publicly available), the book invites readers to ask hard questions about our own blind spots regarding law, human rights, state violence, and childhood, in and beyond the Israel/Palestine context. This symposium gives hope that such critical reflection is indeed bearing fruits.

References:

Cannella Gaile S. and Radhika Viruru (2004) Childhood and Postcolonization: Power, Education, and Contemporary Practice. New York: Routledge.

Clarke Michael (2022) Framing the Xinjiang Emergency: Colonialism and Settler Colonialism as Pathways to Cultural Genocide? In Michael Clarke (ed.) The Xinjiang Emergency: Exploring the Causes and Consequences of China’s Mass Detention of Uyghurs. Manchester: Manchester University Press.

Farson Richard (1974) Birthrights: A Bill of Rights for Children. New York: Macmillan.

Firestone Shulamith (1970) The Dialectic of Sex: The Case for Feminist Revolution. New York: Bantam. 

Hagestad Gunhild O. and Peter Uhlenberg (2005). The Social Separation of Old and Young: A Root of Ageism.Journal of Social Issues 61(2): 343–360.

Hussain Nasser (2007) HyperlegalityNew Criminal Law Review 10(4): 514–31.

Invernizzi Antonella and Brian Milne (2002) Are Children Entitled to Contribute to International Policy Making?: A Critical View of Children’s Participation in the International Campaign for the Elimination of Child LabourInternational Journal of Children’s Rights 10(4): 403–31.

Roberts Sean R. (2022) Settler Colonialism in the Name of Counterterrorism: Of ‘Savages’ and ‘Terrorists.’ In Michael Clarke (ed.) The Xinjiang Emergency: Exploring the Causes and Consequences of China’s Mass Detention of Uyghurs. Manchester: Manchester University Press.

Schnell R.L. (1979) Childhood as Ideology: A Reinterpretation of the Common SchoolBritish Journal of Educational Studies 27(1): 7–28.

Stainton Rogers Wendy (2009) Promoting Better Childhoods: Constructions of Child Concern. In Mary J. Kehily (ed.) An Introduction to Childhood Studies. 2nd edn., Maidenhead, Open University Press, pp. 141–60.

Rosen David M. (2007) Child Soldiers, International Humanitarian Law, and the Globalization of ChildhoodAmerican Anthropologist 109(2): 296–306.

Viterbo Hedi (2014) Seeing Torture Anew: A Transnational Reconceptualization of State Torture and Visual EvidenceStanford Journal of International Law 50(2): 281–317.

Viterbo Hedi (2017) Ties of Separation: Analogy and Generational Segregation in North America, Australia, and Israel/PalestineBrooklyn Journal of International Law 42(2): 686–749.

Viterbo Hedi (2018) Outside/Inside. In Orna Ben-Naftali, Michael Sfard, and Hedi Viterbo. The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Palestinian Territory. Cambridge and New York: Cambridge University Press, pp. 301–26.

Viterbo Hedi (2019) Torture’s In/visibility. In Lon Olson and Stuart Molloy (eds.) Interdisciplinary Perspectives on Torture. Leiden and Boston: Brill, pp. 23–43.

Viterbo Hedi (2021) The Pitfalls of Separating Youth in Prison: A Critique of Age-Segregated Incarceration. In Alexandra Cox and Laura S. Abrams (eds.) The Palgrave International Handbook of Youth Imprisonment. Cham: Palgrave Macmillan, pp. 539–62.

Wallace Jo-Ann (1994) De-Scribing the Water-Babies: ‘The Child’ in Post-colonial Theory. In Chris Tiffin and Alan Lawson (eds.) De-Scribing Empire: Post-colonialism and Textuality. London and New York: Routledge, pp. 171–84.

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