The "Humanitarian" Present in Israel/Palestine: Forensic Architecture, Estrangement and Lawfare
Panel 122, 2011 Annual Meeting
On Saturday, December 3 at 8:30 am
Panel Description
This panel addresses the intersection of conflict, space, and law. The unifying theme is humanitarianism (a normative concept ostensibly attentive to the human vulnerabilities as such as well as a body of international law—i.e., the Geneva Conventions) which is subjected to critical analysis to probe the “humanitarian” present as it impacts upon politics in Israel/Palestine. Palestinians in the West Bank and Gaza exemplify the problems and vulnerabilities of “statelessness” in the international order, as well as the impact of perpetual conflict and recurring war. Consequently, there is a double-edged character to international humanitarian law (IHL) in both exacerbating and legitimizing Palestinian suffering, and as a reference for asserting Palestinian rights.
The first paper addresses the practice of forensic architecture in Gaza in the aftermath of “Operation Cast Lead.” Forensic architecture has been used by the UN Goldstone Commission and other investigating bodies to assess whether Israel committed war crimes by measuring material damages against the IHL standards for “proportionality,” “necessity” and the prohibition of deliberately targeting civilians. But privileging the reliability of buildings over people/victims as “witnesses” and “humanitarian” deliberations by Israeli military lawyers that preceded the bombings, expose the contested nature of IHL standards and their dubious utility in protecting Palestinians from military onslaught.
The second paper addresses the dissolution of Palestinian collective identities and the fragmentation of Palestinian subjectivity in the “shared space” of the occupied territories. It argues that estrangement is accelerating, not only in terms of a territorial or physical fragmentation between Gaza and the West Bank, but also insofar as people increasingly appear to belong to different life-worlds, rely on different and non-commensurate registers, and travel in divergent temporal trajectories. The author highlights the camp as an “ungovernable” space and the figure of the “irreconcilable” refugee as both an object and an outlier in project of humanitarianism.
The third paper addresses how lawfare is being applied in Israel/Palestine. “Lawfare” refers to litigation and other legal processes to assert IHL violations and pursue accountability for war crimes. The author argues that Israeli officials and supporters condemn lawfare as “anti-Israel” when it targets violations against Palestinians, but that the state itself engages in lawfare by inoculating state practices against accountability through efforts to reinterpret IHL to “legalize” assassinations, military campaigns against occupied civilians, and blockades. In short, Israel/Palestine is a veritable lawfare laboratory for contesting the applicability, enforceability, and utility of IHL in the 21st century.
This paper argues that Israel/Palestine has become a veritable and unparalleled laboratory for assessing and disputing “what is legal” in the context of 21st century war and armed conflict, commencing with the second intifada and accelerating with “Operation Cast Lead.” “Lawfare” refers to the varied uses of law (litigation and other law-centered processes) in the context or aftermath of warfare. Broadly, it involves efforts to interpret, enforce and adjudicate international humanitarian law (IHL—i.e., the contemporary laws of war enshrined in the Geneva Conventions of 1949) against the real-world events occurring or having occurred in an armed conflict. The rules and standards of IHL that have become the subjects of lawfare in Israel/Palestine (and elsewhere) include efforts to identify and penalize war crimes, including violations of civilian immunity (i.e., the prohibition against deliberately targeting civilians and other noncombatants in military operations or otherwise treating them as combatants); distinction (i.e., the imperative to distinguish between civilians and combatants); proportionality (i.e., the injunction to limit the use of force in a manner that is proportional to the military value of the target); necessity (i.e., the imperative to restrict targets or tactics to those necessary to achieve legitimate military goals); and humane treatment (i.e., the prohibition against torture, and cruel, inhumane and degrading treatment of prisoners). While lawfare has been condemned by Israeli officials and supporters of the state’s armed attacks on Palestinians as part of an international campaign of delegitimation (sometimes characterized as a manifestation of anti-Semitism), in fact, the Israeli government has been engaged in an active lawfare campaign of its own in its interpretative efforts to “legalize” extra-judicial assassinations and full-scale military assaults in the still-occupied West Bank and Gaza, and to assert that all Israelis (including soldiers) have legal immunity from attacks while Palestinian civilian immunity is legitimately violable in the pursuit of Israeli security. The paper investigates the “double-edged sword” of lawfare as it has been employed in and on Israel/Palestine to allege and deny Israeli war crimes, and considers how lawfare in this context is contributing to the contemporary instability and fluidity of IHL.
With the effective collapse of the national project over the past decade, Palestinian society, having lost its principal collective referents and shared assumptions --- i.e., the collective red lines and fundamentals, often subsumed under the code word thawabet, that mediate and interact with the occupying power and maintain collective national identity--appears to have come largely unmoored. The contemporary moment, then, is one of dissonance and flux that allows for a diffusion of lines of individuation and modalities of subjectivity. There is a spatial dimension to all this, not only in terms of the territorial division between the West Bank and Gaza Strip, but also insofar as the people who inhabit this/these “shared space(s)” increasingly belong to different life-worlds, rely on different and non-commensurate registers, travel in divergent temporal trajectories. Here, ‘humanitarian’ and statist (and proto-statist) apparatuses collide and re-align, as Palestinian subjects begin to live out not only daily fragmentation but, more critically, what can be described as spatio-temporal mutual estrangement.
Against this background, the paper focuses on the “ungovernable” spatiality of the Palestinian refugee camp and the “irreconcilable” refugee as the twin specters at the hidden heart of the mutual estrangement that pervades Palestinian society. The camp is often “read” as a sovereign device of control (the paradigmatic space of modern exception), but in Palestine at least it is also a site of “possibility” precisely in its legal suspension and spatial “otherness.” Not only is the camp physically more difficult to discipline and to surveil, but it is also-- by virtue of its liminality and spatial/legal indeterminacy-- the site and resource of an emergent subjectivity from which refugees intervene in the process of (sovereign and humanitarian) subjectification. It is precisely this “capacity” for intervention that Agamben defines as the "point of ungovernability," which for him is the beginning and line of flight of all politics. This is not to say that the camp is post-control or post-discipline, but to recognize its dialectical nature as a spatialized apparatus of control/containment and innovation. And because the “refugee,” who is legally recognized as a person out-of-place, has aspirations and identifications that defy – or cannot be realized—in the temporal space of the political present, the camp’s ungovernability is compounded. The permanence of Palestinian refugee-hood subverts the (idealized) conception that humanitarian crises that “produce” and maintain refugees are temporary and finite.
Using as a case study the controversial use of forensics, and more specifically forensic architecture, in the aftermath of “Operation Cast Lead” by the UN Goldstone Commission, this paper highlight a recent epistemic shift through which an emphasis on forensic practices has gradually increased at the expense of the (human) witness in the context of international law.
Forensic architecture is an analytical method for probing histories of violence as they are inscribed in buildings and other forms of construction. It operates at the intersections between the study of the built environment and the laws of war, otherwise known as international humanitarian law (IHL). Like DNA in criminal forensics, damaged buildings are uncritically treated not only as repositories of truth about violence, but increasingly as “more reliable witnesses” than human memory and eyewitness accounts..
In the case of Operation Cast Lead, the facts of destruction were evident and abundant, and the Goldstone Commission’s investigation was undertaken and pursued as a technical matter (i.e., utilizing reliable techniques). Its forensics experts explored heaps of rubble in order to gather information with regard to how an event unfolded and, by extension, whether it was legal or illegal according to the frame of IHL. The ferocity of the debate in this instance meant, in turn, that not only the forensic analyses but also the analysts themselves came under prolonged scrutiny. But, as this paper argues, privileging the reliability of buildings over people/victims, and the kinds of “humanitarian” deliberations by Israeli military lawyers that preceded the bombings and attacks, expose the deeply contested nature of IHL standards and their use in protecting Palestinians from military onslaught. The forensic “reading” of buildings, and the consequences and debates that result, highlight the plasticity of IHL even as they provide a new approach that attempts to apply IHL standards on the ground. The paper argues that the uses of forensic architecture in the aftermath of violence in Gaza offer, importantly and paradoxically, a glimpse into the growing proximity between human rights organizations and the militaries of western states, including Israel. This proximity and paradox is expressed by a shared language, sometimes overlapping aims, and an easy migration of personnel who transfer their military and IHL expertise to the service of human rights organizations.
